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Full text of "The law of trusts in British India"

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http://www.archive.org/details/cu31924084224025 



THE LAW OF TRUSTS 



ZsiQOve Xaw ILectuies— 188X 



THE LAW OF TRUSTS 



IN 



BRITISH INDIA 



BY 

WILLIAM FISCHER AGNEW 

or Lincoln's inn. esq., baebistbr-at-law ; attthoe off " a treatise on 

THE law of patents " AND " A TREATISE ON THE 
STATUTE Off ffRAtlDS " 

SECOND EDITION 

REVISED AND EDITED 

BY 

M. KRISHNAMACHARIAR, M.A., M.L., PhD 

AUTHOR Off THE INDIAN EDITION Off TJNDBEHILL'S LAW Off TORTS, COMMENTARIES 

ON THE MADRAS ESTATES LAND ACT, LAW OF EASEMENTS 

IN BRITISH INDIA, A HISTORY Off CLASSICAL 

SANSKRIT LITERATURE, &C 



CALCUTTA & SIMLA 

TRACKER, SPINK & CO 
1920 



15^ ^0^1 



PEnTTBB BV 
THACKER, SPrSTK & CO., CALODTTd. 



EDITOE'S NOTE. 



At the time when these lectures were delivered by 
Mr. F. W. Agnew, the Law of Trusts in British India was 
no more than the law of England administered in the 
Indian territories. The Indian Trusts Bill was then on the 
anvil and in the year following it became -law. It was 
a statutory expression of the law of private trusts, but 
for reasons unknown, the Act has not been extended in 
its operation to the whole of British India. The Statutes 
of Elizabeth on Fraudulent Conveyances have been re- 
placed by the provisions of the Transfer of Property 
Act and that of Victoria on Insolvent Debtors by the 
Provincial and the Presidency-Towns Insolvency Acts. 
The Official Trustees' and Administrator-General's Acts 
have been revised and re-enacted. 

In the field of public trusts the Charitable Endow- 
ments Act is the sole piece of legislation. Beyond relieving 
the Government of its responsibility for the working 
of some institutions of public interest, the Religiqug 
Endowments Act has done no real good but the lethargy 
of the Legislature has conferred on it an iU-deserved longe- 
vity. The Charitable and Religious Trusts Control Act 
has now been passed and the merits of the measure must 
rest for future appreciation. 

To the learned Judiciary, the chapters on Benami 
Transactions and Religious Trusts owe their particular 
magnitude. The Benami System has for its basis the 



▼1 EDITOB S NOTE. 

principle of constructive trusts and in dealing with in- 
stances of tliat nature, our Judges have never been slow to 
draw upon the treasures of the Courts of Equity in England. 
The law of Religious Endowments has developed a litera- 
ture of its own, which, with its vast expanse, it is not now 
possible to embrace, save in an independent treatise. 



April, 1920. M. K. 



TABLE OF CONTENTS. 



LECTURE I. 

ORIGtIN OF TbTJSTS IN ENGLAND. 

Page. 
Origin of Trusts ia England — Tenures — Feudal system — Sub-infeuda- 
tion — Estates of freehold — Alienation of estates — Gifts to religious 
houses — Mortmain — • Uses — • Statute of Uses — Object of Statute — 
Legal and equitable estates — Trusts among Hindus — Krishnaramini 
Dasi's case — Tagore case — Trusts for creditors — Family religioug 
trusts — Legislation in India — Arrangement of subject — Definition of 
trust — Must be confidence — Merger — Definition of terms — Kinds 
of trust — Simple trust — Special trust — Ministerial and discretionary 
trust — Mixture of trust and power — Lawful and unlawful trusts — 
Public and private trusts — Executed and executory trusts — Austen v. 
Taylor — Jervoise v. The Duke of Northumberland — Coape v. Arnold 

— Executory trusts in marriage articles and wills — Distinction between 
them — ^Marriage articles — Blackburn v. Stables — Jervoise v. Duke of 
Northumberland — Will — Cy pres — Intention — General rules — 
Subject-matter of trust — Trusts against policy of law — Title of 
honor — Trusts of immoveable property without the jurisdiction of a 
Court — Penn v. Baltimore — Act V of 1908 — High Courts' Charter 

— Letters Patent — Suits for land — Foundation of jurisdiction — 
Court of Equity acts in per.ionam and not in rem — Land may be in a 
foreign country — Angus v. Angus — Lord Cranstown v. Johnston — 
Privity — Foundation of jurisdiction — Injunction restraining proceed- 
ing by other Courts — Trusts of moveable property abroad — Object 
must be lawful — General rule for ascertaining whether trust lawful — 
Indian Contract Act, s. 23 — • Trusts contrary to policy of law or 
founded upon illegal contract void — Assignment of half -pay — Trusts 
for future illegimate children — Trust for illegitimate children in being, 
or en ventre aa mere — Trust forbidden by law — Trusts postponing 
enjoyment of property or restrainiug alienation — Accumulation — 
Perpetuities among Hindus — • Restraint on alienation — Condition 
restraining alienation after absolute gift — Insolvency • — Trust to cease 
on bankruptcy or insolvency — Trust to cease on happening of parti- 
cular event — Clauses of forfeiture construed strictly — Trust for 
immoral purposes — Failure of trust — Illegal purpose failing — Must 
be a cestui que trust — Trust partly lawful and partly unlawful — Trust 

of immoveable property in foreign country . . . . . . 1 



VIU TABLE OF CONTENTS. 

LECTURE II. 
Dbclaeation of Trust. 



Page. 



Declaration o£ trust : Indian Trusts Act, ss. 5, 6 — Intention to create 
trust must be shown — Valuable consideration — Consideration not 
necessary — Transmutation of possession — Voluntary settlements — 
If incomplete, not enforced against settlor — If nothing more to be 
done by settlor, trust is complete — Assignment by cestui que trust — 
Notice — What amounts to a valid declaration of trust — Ineffectual 
assignment — Chose-in-action — Subsequent disclaimer by trustee — 
Settlor OEumot revoke voluntarily — Setting aside voluntary settlement 

— Defrauding creditors — To what property Statute applicable — 
Question of fraud is one of fact — Assignment by way of mortgage — 
Valuable consideration not support when mala fides — Sale to defeat 
Crown — Assignment in favour o^ one creditor — Voluntary settle- 
ments within Statute — Indebtedness of settlor — Secured debts — 
Consideration paid to third person — Voluntary settlement only void 
as against existing creditors ■ — Unless fraud — How far settlement 
void — Defrauding purchaser — Statute does not extend to personal 
estate — When settlor may defeat settlement — Subsequent purchase 
must be for value — How far voluntary settlement defeated — Per- 
sonalty settled — Subsequent will — Conveyances with power of 
revocation — EfEect of Statute — Valuable consideration — Marriage 

— Extrinsic evidence admissible to show consideration — Settlement 
not set aside as against grantors — Voluntary settlement in expectation 
of death — Eectif jring settlement — Enforcement — On whom binding 

— Creditors' deeds how far revocable — Johns v. James — Execution 
of deed by creditors — Deed not communicated to creditors — Trust 

by will for payment of debts . . . . . . . . 47 



LECTURE IIL 

Implied and Resulting Tkusts. 

Implied trusts — Precatory trusts — Objects, property, and trust must be 
described — Property acquired with notice of existing trust : Indian 
Trusts Act, s. 91 — Words of recommendation and entreaty — Inten- 
tion to give absolutely — Intermediate class of cases — Maintenance — - 
Agreement to settle property — Vendor trustee for vendee — Resulting 
trusts — Undisposed of interest : Indian. Trusts Act, s. 83 ■ — Excluding 
heirs — Parol evidence to rebut presumption — Illegal purpose : Indian 
Trusts Act, ss. 84, 85 — Trust to sell — Trusts vague — No trust 
declared — Trust declared of part only of estate — Transfer of stock 
or money into name of another — Purchase in name of trustees — 
Purchase in name of stranger — Expression of wish — Delay — Rule 
applies to joint purchase — To personal as well as real estate — Pur- 
chase in fictitious name — Parol evidence admissible on part of person 
paying purchase-money — Parol evidence on behalf of person to whom 



TABLE OF CONTENTS. IX 

PAdB. 
conveyance made — To rebut presumption as to part of the property — 
Statute of Frauds — Conveyance to stranger without consideration — 
Purchases in the name of a wife or child no resulting trust — Reputed 
wife — Person in loco parentis — Purchase by a mother — Purchase in 
name of nephew — Fiduciary relationship — Purchases void as against 
creditors — Bules apply to personal estate — Surrounding circum- 
stances to be considered — Purchase-money unpaid — Joint tenancy 
when created — Purchase in the name of a child and a stranger — 
Evidence to rebut presumption of advancement — Subsequent acts 
and declarations — Possession by father ■ — Dividends received by 
father — Devise, bequest, or lease — Child fully advanced . . 75 



LECTURE IV. 
Bbnami Transactions and Consteuotive Tbtjsts. 

Benami transactions — Purchase in name of child : Indian Trusts Act, 
ss. 81, 82 — Burden of proof — Strangers — Benami transactions 
among Mahomedans ■ — Assent of benamidar unnecessary — Disputing 
landlord's title — Suit by landlord against beneficial lessees — Strict 
proof required — Oral evidence — Proof of payment of purchase- 
money — Pleading benami transaction against purchaser under s. 66, 
Civil Procedure Code — Purchase at sale for arrears of revenue — Sale 
by benamidar — Standing by — Purchaser with notice — Real owner 
may sue benamidar — Equitable owner — Suit by benamidar — Suit ' 
by creditors against benamidar — Transaction avowedly fraudulent : 
Indian Trusts Act, s. 84 — Parties to suit : Indian Trusts Act, s. 88 — 
Constructive trusts — Renewal of leases by trustee — Principle of rule — 
Instances — Remedy — Agent of trustee — Legal adviser gaining 
advantage by ignorance — Gifts to persons in fiduciary capacity — 
Voluntary gift where no fiduciary relation exists — Where it does not 

— Spiritual influence — Parent and child — Persons in loco parentis — 
Guardian and ward — Gift to legal adviser — Extent of rule — Gift 
in expectation of death — Strangers — Principles on which Court acts 

— Badges of fraud — Independent advice — At whose instance set 

' aside — Acquiescence — Confirmation and acquiescence — Laches . . 94 



LECTURE V. 

Parties to the Trust. 

Acceptance of trust : Indian Trusts Act, s. 10 — Trustees also executors — 
Acting as agent — Executor of an executor — ■ Renunciation of probate 
— Partial acceptance — Recitals in deed as to state of trust — Trustee 
in fact — Liability of trustee — By whom trust may be created — 
General rule — The Sovereign — Corporations — Prizes of war — 
Infants — Married women — Stridhan — Alien — Persons convicted 



TABLE OF CONTENTS. 

Pa8B. 

of certain offences — Grantee under sanad — Who may be a cestui 
que trust — The Government — Corporations — Aliens — Who may 
be a trustee — Persons under disability — Aliens — The Sovereign — 
Not the Government of India — Corporation — Presidency banks — 
Married women — Insolvent — Gestuis que trustent — Relatives — 
Number of trustees — Disclaimer • — • How made — Gift to trustee or 
executor . . . . . . . . . . . . 123 



LECTURE VI. 

Duties and Liabilities oe Trustees. 

Duties and liabilities of trustee : Indian Trusts Act, s. 11 — • Trustee to 
acquaint himself with state of property : Indian Trusts Act, s. 12 — 
Trustee bound to protect trust-property : Indian Trusts Act, s. 13 — 
Getting in trust-estate — Estate outstanding on personal" security — 
When securities to be realized — Care required from trustee : Indian 
Trusts Act, s. 15 — Loss occasioned by agent — By act of co-trustee — 
Trust-fund consisting of money — Control of trust-fund — Failure of 
banker — Trustee to prevent waste : Indian Trusts Act, s. 18 — 
Permissive waste — Cestui que trust may not benefit by waste • — 
Tenant-for-life without impeachment of waste — When Court may 
interfei?e — Principle on which Court acts — Waste by Hindu widow 

— Suit for possession — Receiver — Alienation by widow — Proper 
parties to sue — Collusion by immediate reversioner — Conversion of 
perishable property : Indian Trusts Act, s. 16 — Howe v. Earl 
of Dartmouth — Pickering v. Pickering — Exceptions from rule — 
Trustee to be impartial — Discretion of trustees not interfered 
with : Indian Trusts Act, ss. 17, 49 — Selecting objects of the trust — 
Modes of investment — Exercise of power by will — Trustee cannot 
set up title to trust-property — Claim by third person — Delivery up 
of moveable property — Pailure of cesHi que trust — Trustee to keep 
accounts : Indian Trusts Act, ». 19 — Vouchers — Costs — Good 
faith — Managing member of Hindu family — Duties of trustee as to 
investment — Personal security • — Shares in companies — Where 
personal security allowed — One cestui que trust not to be benefited at 
expense of others — Consent of cestuis que trustent to change — Con- 
tinuing investment — Varying securities — Investment or mortgage — 
Trustees may not lend to themselves — Paying over mortgage-money 

— Consent of Court to investment — Investment of trust-money : 
Indian Trusts Act, ss. 20-21 — Remedy in case of non-investment — 
Remedy in case of wrongful investment — Insolvency of trustee — 
Duties of trustees for sale or mortgage — Trustee bound to sell to best 
advantage — Must attend to interest of all parties — Valuation — 
Absolute trust for sale will not authorize mortgage — Trust to mortgage 
will not authorize sale — Trust for sale survives — Trustees bound to 
make good title — Counsel's opinion — Payment of purchase-money — 
Duties of trustees for purchase . . . . . . . . 138 



TABLE OF CONTENTS. XI 

LECTURE VII. 
Duties and Liabilities of Trustees. 

Fage, 
Time within which sale of trust-property to be made — Discretion to be 
exercised : Indian Trusts Act, s. 22 — Conveyance of trust-property 
to cestuis que trustent — Distribution of the trust-fund — Derivative 
title — Payment after death of cestui que trust — ■ Appointment of 
trustee to assist in distributing — Presumption of death — Rebuttal 
of presumption — Release — Liability for payment to wrong persons 

— Costs — Interest — Bond of indemnity — Authority from cestui 
que trust to receive the money — Payment on written authority — 
Payment to persons under disability — Partners — Payment to single 
trustee — Over-payment : Indian Trusts Act, s. 32 — Refund to executor 

— Payment when debt from testator subsisting — Liability of trustee 
for breach of trust — Trustee liable though he has not benefited — 
Extent of liability — ■ Trustee about to abscond — Criminal breach of 
trust — Liability of professional adviser — Partner — Loss by accident 
— • Neglect to obey directions in instrument of trust — To pay pre- 
miums — Sale to purchaser for valuable consideration without notice 

— Agent — Barnes v. Addy — Limitation — Wilful default — Con- 
currence — Fraud by trustees — By cestui que trust — Acquiescence — 
Delay — Release and confirmation — No set-off in respect of breach of 
trust — Liability for breach of trust by predecessor or co-trustees — 
Trustee joining in receipt for conformity — Indian Trusts Act, s. 26 — 
Trustees giving receipt bound to see to investment — • Walker v. 
Symonds • — Trustee joining in act for convenience — Executor joining 
in receipt for conformity — Executor must ascertain that money 
required • — Executor not liable as such for act of co-executor — Styles 
f. Cruy — • Liability under decree for common account — Unnecessarily 
handing over assets — Restraining intended breach of trust — Several 
liability of co-trustees — Limitation of liability — = Contribution — 
Impounding fund in Court — Costs — Trustee paying under power- 
of-attomey — Payment without notice of transfer — Indemnity- 
clause . . . . . . . . . . . . 176 



LECTURE VIIL 
Rights and Powers op Trustees. 

Custody of title-deeds — Right of trustee to reimbursement : Indian Trusts 
Act, s. 32 — Costs — Expenses of management — Accounts — Advance 
by trustee — Wrongful act of agent — Repairs — Lien for expenses — 
Agents have no lien — Interest on advances — Advances in respect of 
different trusts — Personal liability of cestui que trust to reimburse — 
Indemnity — Suit to recover advances — Public funds — Indemnity 
from gainer by breach of trust : Indian Trusts Act, a. 33 — Suit to 
administer trusts — Appeal — Costs — Application to Court for opinion 
in management of trust-property : Indian Trusts Act, s. 34 — Right 



xii TABLE OF CONTENTS. 

Page. 
to settlement of accounts : Indian Trusts Act, a. 35 — General authority 
of trustee : Indian Trusts Act, s. 36 — Advice of cestui que trust — 
What acts trustee may do — Repairs — Winding up estate — Main- 
tenance — Compounding or releasing debts — How trust-property 
may be sold : Indian Trusts Act, s. 37 — Indian Trusts Act, s. 38 — 
Conditions of sale — Buying in — Power to convey : Indian Trusts 
Act, s. 39 — Power to vary investment : Indian Trusts Act, o. 40 — 
Power to apply property for maintenance : Indian Trusts Act, b. 41 — 
Minors' Act — Liability of purchaser to see to application of purchase- 
money — Conveyance of Land Act — Power to give receipts : Indian 
Trusts Act, K. 42 — To whom purchase-money payable — Charge of 
debts — Notice of breach of trust — Suspension of trustee's , powers 
after decree : Indian Trusts Act, s. 45 . . . . . . 215 



LECTURE IX. 

Disabilities op Tbttstebs. 

Trustee cannot renounce after acceptance : Indian Trusts Act, o. 46 — 
Trustee cannot delegate : Indian Trusts Act, s. 47 — Employment of 
solicitor to invest — Delegation to co-trustee or co-executor — Neces- 
sary delegation — Co-executor — Delegation authorized by author of 
trust — Representatives of surviving trustee — Praud by co-trustee — 
Discretionary trust — Ministerial acts — Liability of agent — Co- 
trustees cannot act singly : Indian Trusts Act, s. 48 ■ — All trustees 
must join in receipt and conveyance — Proof in insolvency — Excep- 
tion to rule in case of public trust — Special power — Acknowledgment 
■ — Costs of acting independently : Indian Trusts Act, s. 49 — Injunc- 
tion — Remuneration for trouble : Indian Trusts Act, s. 50 — Carrying 
on business — Surviving partner trustee — Solicitor trustee — Extent 
of charge allowed — Costs — Trustee appointed by Court — Profes- 
sional charges not allowed — Settled account — Remuneration fixed 
by author of trust — Contract for remuneration with cestuis que irustent 
— Gift coupled with duty — Expenses of agent — Curators under Act 
XIX of 1841 and Act XL of 1858 — Official Trustee — Administrator' 
General — Trustee may not make a profit from his office : Indian 
Trusts Act, s. 51 — Employing trust-funds in trade — Compounding 
debts or mortgages and purchasing — Purchase for benefit of cestui 
que trust — Cestui que trust cannot give to trustee — Rule applies to 
all fiduciary relations — Partners — Purchasing share of deceased 
partner — Instances of rule — Trustee retiring for a consideration — 
Extent of liability — Failure of heirs of cestui que trust — Failure of 
next-of-kin — Trustee for sale cannot purchase — Trustee purchasing 
from himself — That price fair immaterial — So nature of property, 
or mode of purchase — Trustee who has never acted — When cestui 
que trust may set aside sale — Trustee may not buy for another — 
Agent of trustee may not purchase — Trustee taking lease — Time 
within which sale must be set aside — Confirmation — Purchase from 



TABLE OI CONTENTS. XHl 

Paqb. 
cestui que trust — Fiduciary relation dissolved — Burden of proof — 
Purchase by creditors — Assignee — Leave to bid — Purchase from 
infants — Legal representatives — Mortgagee — Lending to trustees . . 239 



LECTURE X. 

Or THE RroHTS and Liabilities of the cestui que trttst. 

Right of cestui que trust to rents and profits : Indian Trusts Act, s. 55 — 
Tidd V. Lister — Right to call for conveyance — Costs — Indemnity — 
Right of cestui que trust to have trust carried out : Indian Trusts Act, 
H. 56 — Right of cestui que trust to hold property absolutely : Indian 
Trusts Act, s. 57 — Separate use — Right of cestui que trust to inspec- 
tion : Indian Trusts Act, s. 58 — • Custody of title-deeds — Right of 
cestui que trust to alienate his interest — Cautions in assignments of 
equitable interest — Separate use — Method of conveyance — Assignee 
takes subject to all equities — Set-off — Mutual demands must be in 
respect of same rights — Notice to trustees — Mortgage — Description 
of property — What is sufSoient notice — To whom notice to be 
given — Agents — Notice to one of several trustees — Notice before 
trust-fund received — Bankers — Trustee purchaser — Non-payment 

— Mortgagee — Immoveable property — Stop-order — Right to 
execution of trust — Suit for execution of trust : Indian Trusts Act, 
B. 59 — Intention of author of trust carried out — Right to proper 
trustees : Indian Trusts Act, b. 60 — Suit for appointment of new- 
trustees — Costs — Grounds for removal of trustee — Rules for select- 
ing new trustees — In re Tempest — Right to compel trustee to do act 
of duty — Injunction — Wrongful purchase by trustee — Interest — 
Allowance for outlay — Reconveyance — Interest — Costs — ^Following 
trust-estate into hands of third persons — Volunteers — ■ Purchasers 
for value — Purchase from guardian — Notice of trust — Purchaser 
for valuable consideration without notice — Purchaser without notice 
from purchaser with notice — Purchaser with notice from purchaser 
without — Fraud — Doubtful equity — Following converted trust- 
property — Proof of purchase with trust-money — Money, notes, or 
negotiable instruments — Trust-fund mixed with trustee's money — 
Penuell v. Deffell — Be Hallett's Estate — Lien — Limitation — 
Accrual of cause of action — Fraud — Purchase from manager of joint 
Hindu family — Position of shebait — Duty of purchaser — Terms on 
which sale set aside — Duty of manager — What is sufficient necessity 

— Sale to pay debts — Hunooman Persaud Panday s case — Purchaser 

under execution — Purchase from heir of Mahomedan debtor 

Acquisition by trustee of trust-property wrongfully converted — 
Liability of executor or administrator to pay interest — Liability of 
trustee who leaves property uninvested — When trustee liable to 
pay interest — Trustee employing trust-funds in trade — Docker v. 
Somes — Apportioning profits — Compound interest — Trust-funds 



XIV TABLE OF CONTENTS. 



Page. 



mixed with trustee's money — Partner trustee employing trust-funds 
in business • — Election where trust-property to be sold or invested — 
Election by one cestui que trust to retain property unconverted — 
Notification of election — Liability of cestui que trust joining in breach 
of trust — Against whom interest of cestui que trust applied — Rights 
and liabilities of transferee from cestui que. trust .. .. 273 



LECTURE XL 

Vacating the Oitice of Tbttstee. 

Vacating the office of trustee : Indian Trusts Act, s. 71 — Discharge by 
cestuis que truslent — Discharge under power in instrument — Number 
of trustees — Trustee dying in lifetime of settlor — Payment into 
Court — Refusing or declining — Retiring — Last survivor — Cestui 
que trust may be appointed — Assignee or devisee of trustee becoming 
unfit or incapable — New trustee should be within jurisdiction — 
Trustee paid to retire — Breach of trust — Appointment must be 
completed — Stamp — Discharge by Court — Grounds of discharge — 
Whether retiring trustee must appoint successor — Procedure for 
discharge — Affidavits of fitness — Appointmeot where property lost 
— • Costs — Grounds for discharge — Discharge of representatives of 
trustee — Executor — Appointment of new trustees on death, etc. : 
Indian Trusts Act, o. 73 — Conveyance to new trustee — Survival of 
trust : Indian Trusts Act, s. 76 — Extinction of trust : Indian Trusts 
Act, s. 77 — Compulsory payment into Court — Nature of interest of 
plaintiff — Payment in of share — Payment after decree — Payment 
in of fund not received — Admission of receipt of money by trustee — 
Appointment of receiver — Necessary parties to a suit — Suits by or 
against strangers — Civil Procedure Code — Succession Act — Suits 
for specific performance — Representative specially constituted — 
Suits between trustees and cestuis que trustent — Representatives of 
deceased trustee — When trustee unnecessary party — Cestui que trust 
abroad — Suit for aliquot share — Suit between trustees — Executors 
and administrators — Suit by one cestui que trust on behalf of others — 
When allowable — Severing defence — Costs of severing — Costs — 
In suits between strangers and parties to trust — Between trustees 
and cestuis que trustent — Costs out of fund — Costs, charges, and 
expenses — Disclaimer — Costs after decree — ■ Suit necessary by act 
of trustee — Accounts — Law doubtful .. .. ..331 



LECTURE XIL 
Reliqiofs and Chaeitable Trusts. 



Religious and charitable trusts — Trust of immoveable property — Bequests 
to religious or charitable uses -— What are charitable purposes — 



TABLE or CONTENTS. xv 

Paob 
Religious purposes — Inhabitants of particular place — Improvement 
of particular place — Trust for particular classes of persons — Educa- 
tional purposes — Gift must be for the public — Must be certain 

Morioe v. Bishop of Durham — Instances of uncertainty — Principles 
of construing will — Cy pres — Altering scheme — Gift for charit- 
able purposes generally — Particular purpose failing, where gift is to 
charity generally — Particular charity not described — Failure of 
object where no intention to give to charity generally — Apportion- 
ment of fund — Gift over — Charity in foreign country — Breach of 
trust — Mode of procedure to obtain redress — Civil Procedure 
Code, ss. 92-93 — Liability of trustees to account — New 
trustee — New trustees of society for maintaining religious 
■\yorship — Memorandum of appointment — Vesting — Appointment 
of Official Trustee to charitable trust — Vesting property in trustees of 
charity — Visitors — Controlling revenues of charity — Subsequent 
gift — Purchaser without notice from purchaser with notice — Aliena- 
tion of charity estate — Religious trusts among Hindus — Perpetuities 
— Colourable gift to idol — Gift must be certain — Gifts to religious 

or charitable uses by Oudh taluqdars — Tenure in trustee Trust 

imperfect — Devise subject to trust — Sale of property subject to 
trust — Partition subject to trust — Alienation — Evidence of endow- 
ment to be given — How far sale set aside — Trustee may not benefit 

by sale — Sale of turn of worship — Succession of trusteeship 

Enjoyment of endowed property — Turn of worship — Limitation 

Management vested in different persons — Proof of succession 

Succession where manager bound to celibacy — Reversion — Removal 
of trustee — Removal of mohunt — Religious trust irrevocable — 
Execution of trust — Principles to be followed — Right to erect place 
of worship — Religious trusts among Mahomedans — Elements of • 

wuqf — Creation of — Evidence of appropriation — Wnq^ to take effect 

after settlor s death — Requisites to valid wuqf — Undue influence 

Endowment subject to mortgage — Revocation — Alienation of vmqf 

property — Nominal endowment — Alienation subject to trust 

Mortgage by local custom — Lease of wuqf property — Transfer of 
trust — Purchaser from trustee — Breach of trust — Removal of 
trustee — Office of trustee — Female may be mutawalli — Succession 
to the office — Suits in respect of wuqf property . . . . 353 



TABLE OF GASES. 



Page, 
A 

Abas Alii Zenul Abaddin v. 
Gulam Muhammad Valad 

Baba Miiza . . . 398 

Abbaa Ali v. Karim Baksh . 68 

Abbikeaava v. Keaavan . . 246 
Abbott V. Massio . . .137 

Abdul V. Banni . . . 395 

^— — V, Gulam ... 23 

V. Mt. Nuran . . 23 

■ V. Salima ... 68 

Abdul Fata v. Basamoya . 395 

Abdul Gaiur v. Nizamuddin . 395 

^— ^ V. Uma Kanta . 290 

Abdul Gamie Kaaam v. 

Hussen Miya Bahimtula 394, 395 
Abdul Ghafoor v. Altai 

Husain .... 399 
Abdul Hasan v. Haji Mo- 
hammad . . . 396, 397 

Abdul Hye v. Mir Mahomed . 105 

Abdul Kadir w. Ali Mia . . 61 



Abdul Karim 

nisaa 
Abdul Bahiman v. 
Abdul Bahman 

yar . 



V. Shofin- 

. 391, 394 
Cassim . 369 

V. Miratha- 

. 99 



— V. Yar 

Muhammed , . . 402 

Abdul Bajake.Bai Jimbabai . 400 

Abdur Bafey v. Banni Begum. 392 

Abel V. Heathoote . . 174 

Abhiiam v. Shyamaoharan . 38, 
382,383, 384 

Abinash V, Harinath ; . 152 



Page. 
Abkanu. Soran . . .110 
Abraham v. Alman. . . 77 
Abu Sayid Khan v. Bakar Ali 392 
Aoheaon v. Fair , . .111 
Aokroyd v. Smithson . . 84 
Aoland v. Gaiaford . . 81 

Aoraman v. Corbett . . 59 
Aoton V. Woodgate . . 71 

Adair v. Shaw . . 187, 298 
Adams v. Adams ... 43 
■ V. Claxton 

V, Clifton 

V. Taunton 

Adam's Trust, Be 
Addiaon v. Cox 
Adlington v. Cann 
Administrator of 

Hughes 
Administrator-General of 

Madras v. Hawkins 

V. Money 



Bengal 



Adnam v. Cole 
Adurmoni Devi 

Sibnarain Kiu' 
Advocate- General 

Sultani Bcgam 



Huseni 



Strangman 



Belohambers 



145 
267 
138 
289 
286 
32 

227 

229 
362 
357 

. 315 
. Fatima 
. 399, 400 
V. Md. 

. 369, 400 
Thomas 

. 362 



«.. Chowdhry 



V. Adamji 



' of Bengal v, 
■ of Bombay 



V. Bai Funfabai 



357 

369 
291 



LT. 



XVlll 



TABLE OP OASES 





Page. 




Page. 


Advocate -General of Bombay 




Ambioa v. Gopal . 


. 101 


«. Moulvi Abdul Kadir 291, 


370, 


Amkea v. Parkinson 


144, 166 




399 


Amolak v. Dhondi 


. 112 


Adye v. Feuilleteau 


164 


Amphlett v. Parke 


. 82 


Afimannessa v. Abdul Soban . 


397 


Amrita Bibee v. Kanhai 


Lai 238 


Aftabuddin v. Basanta 




Amritlai Kalidas v. Shaik 


Kumar .... 


59 


Husaein . 


. 397 


Aga All V. Altai Haasam 


394 


Amrito Lai v. Surmomoyee 


. 37 


Aga Mahomed Kumul Teh- 




Amritolal v. Surnomani 


. 36 


ranee 0. Aga Abbas Teh- 




Amrutlal Kalidas v. Shaik 




ranee .... 


401 


Huasain . 


. 393 


Aga Md. Shirazi v. Syed Md. 




Amtul V. Mir Nurudin . 


. 23 


Shoostry . . 217,218, 


383 


Anandaohandra v. Parbati- 


Aganoor v. Hogg . 


194 


nath 


85, 196 


Agia Bank, Ex parte . 284 


,285 


Ananta v. Nagamuttu . 


. 38 


Ahmed Mahomed Patel v. 




Anoona v. Waddell 


. 44 


Adjein Dooply . 


193 


Anderson v. Ekworth . 


. 120 


Airey v. Hall 


54 


Andrew v. Trinity Hall . 


. 137 


Ajoy Ram v. Girdhaiee . 


317 




. 310 




Akeiman v. Akerman 


222 


Andrews, & pa? te. 


. 256 


Alabi Koya v. Mussa Koya 


392 


V, Bousfield 


. 285 


Alagappa v. Dasappa 


59 


Angell V. Dawson . 


. 225 


V. Sivaramaaun- 




Angers tein v. Martin 


166, 227 


dara. .... 


363 


Angier v. Stannard 


182, 275 


Alavala Balayya ii. Alavala 




Annaji v. Narayan 290, 


291, 390 


Guravayya 


109 


Annaaami v. Rama Krishna 


. 385 


Aldeisley, Ee . . . 


181 


Annersley v. Ashurst 


. 237 


Alexander v. Alexander 


245 


Annoda Mohun v. Bhuban 




— V. Burley 


362 


Mohini 


. 120 


fr Thn T>n!rn nf 




Anon V. Jolland . 






. 261 


Wellington 
AH Huasain v. Fazl 


19K 


HI \\l r\ 1 l^n.. 


. 271 

50,52 


XtQO 

394 


Antrobus v. Smith 


Alikjan v. Bambaran 


104 


Anund Moyee Chowdlirain 


V. 


Alloard v. Skinner 66, 70, 113, 112 


Bykant Nath Roy 


. 387 


— : D.Walker . 


185 


Appan Charan v. Kyauae Ma 


Allen, iJe . . . 18,46 


, 


85, 196 


— -«. Bormett . 


62 


Archer v. Hudson . 


. 116 




218 


«a 1 1h«^ ^ ^ « .^ 




Aloksoondry Goopto v. Horo 


^^^^^ V, irrtsion . . 
Arden v. Arden . 


28 
285, 287 


Lai Roy .... 


106 


Ardeshier v. Manoher Show 


. 196 


Alsop V. Bell 


222 


Ardeshir v. Bai Sirinbai 


. 159 


Alton V. Harrison . . ( 


30,62 


Armes, Be . 


. 251 


Alven V, Bond 


266 


Armitage v. Coates 


. 38 


Amand v. Bradboume . 


217 


Armstrong v. Armstrong 


. 80 


Amarchand v. Gokul 


59 


Armugha v. Kriahnasami 


. 61 


Ambalam v. Bartle 


385 


Arnold v. Gainer . 250, 


257, 261 



TABLE OF CASES 



XIZ 



Page. 
-Ainould V. Giinstead . . 166 
Arrnth Misser v. Jugguinath 

Indraswamee . . . 384 
Arthur v. Clarksou . . 54 
V. Midland Railway 

Company .... 86 
Aiunachela v. Muthu . . 150 
Asams and the Kensington 

Vestry, Be . . .78 
AsanKaniv. Somaaundaram .61,64 
Asa Ram v. Hari Singh . . 390 
Ashabi v. Haji Tyeb 49, 54, 95, 97 
Ashburnham v. Thompson . 319 



Ashby, Be . 
■^— — V. Blackwell 
Ashen v. Ashen 
Aaliibai v. Abdvdla 
Ashton V. Wood . 
Ashutosi V. Behari Lai 
Ashutosh Dutt v. 

Chxirn Chatterjee 
Ashworth v. Hooper 
Asid Ali V. Aagar Ali 
Ashidbai v. AbduUa 
Asita Mohan v. Nirode Mohan 
Aston V. Wood 
Asubai v. Noorbai 
Athikarath v. 

kath 
Atimannea&a v 

Sobhan 
Atkinson, Be 
Atrabanesaa v. Safatulla 
Atterbury v. Walls 
,A.tt.-Gen]. v. Anderson 
V. Andrews 



71, 277 
. 183 

. 358, 360 
. 263 
. 245 
. 264 

Doorga 

. 379 
. 32 
. 97 
. 135 
375 

84, 361 
. 397 

Erathani- 

85, 197 
Abdul 
387, 399, 400 

. 278 
104 
285 
367 
219 



Archbishop of York 



' V. Aspinall 



V- 

— V. 

— 1). 



Bance 

Brandrath 
, Belgrave Hospital 

II. Beverley 

1). Blizard 

- — t. Brickdale . 



373 
229, 
294 
367 
367 
357 
366 
367 
246 



Page. 
Att.-G6nl. V. Brodie 369, 391 

V. Browne's Hospital 374 

V. Burgesses of East 

Retford . . . .189 



— V. Bushby 



. 358 
V. Caius College 133, 291 



V. Clarke 



„. Clegg 

■ — V. Cook . 

— V. Comber 

ii. Coopers' Co, 

*. Corpo- 
ration of Leicester 

V. Corpo- 



ration of Liveipool 

V. Dangers 

— V. Dean 



and Canons of Windsor 
V. Dedham 



School 



V. Dixie 



■ — • V. Doyley 
V. Duke of 



Northumberland 
V. Earl of 



Chesterfield 
V. Earl of 



Clarendon . 
: — V. Earl of 



Ea^tlake 



V. Earl of 



Lonsdale 



V. Foundling 



Hospital 



V. Gaunt 
V. Geary 
V. Gleg 
V. Glynn 



V. Gover- 



. 357 

. 245 

. 357 

. 357 

. 291 

. 246 

229, 294 
. 211 

. 84 

. 31 

144, 373 

. 366 

. 362 

220, 246 

133, 266 

. 219 

. 358 

. 294 
. 373 
. 227 
17, 248 
. 363 

. 248 



nor of Harrow School 

V. Gov- 
ernors of the Foundling 
Hospital . . . . 373 

t>. Haber- 
dashers .... 369 

-. V. Hamilton . . 17* 



XX 



TABLE OF OASES 



Page. 

Att.-Genl. v. Hankey . . 363 

V, Herriok . . 362 

V. ffigham . 142, 165 

V. Iron- 
mongers Co. . . 363, 388 

V. Jesus College . 366 

V. Kell . . .367 

V. Kohler . . 182 

V. Lady 

Downing . . . 287, 288 

V. Landerfield . 133 

I). Lawes . . 357 

V. Lord Dudley . 298 

V. Lord Gore . 274 

V. Magdalen 



College 



ret 
sors 



and 



Marchant 
Marga- 
Regius, Profes- 



373 
366 



Bristol 



— V. Mayor of 



V. Mayor of 

Exeter 
V. Mayor of 

Norwich 
V. Mayor of 



Stamford 

V. Meyriok 

V. Munro 

V. Owen 

V. Painter 

Staineis Co. 
1). Pearson 

V. Poulden 

i>. Price 

V. Banoe 

D. Sands, 

V. Scott 

V, Shadwell 

— — V. Sher- » 

borne School 
: V. Sidney 

Sussex College . 

V. Solly 



. 358 

. 366 

. 320 

. 217 

. 367 

. 18 

. 159 

. 226 

. 358 

. 32, 
220, 357, 367 

. 35 

. 364 

. 362 

. 31 

. 245 

. 365 

. 367 

361, 371 

. 170 



Att.-Genl. v. St. John's 
Hospital . 

V. Stephens 

V. Stepney 

V. Stewart 

V. Sturge 

V. Tanored 

V. Tyndall 

V. Wanen 

w. Whore wood 

V. Wilson 

Austen v. Taylor . 
Aveline v. Melhuiah 
Aveling v. Knipe . 
Avery v. Griffin 
Avison V. Holmes . 
Avula V. Marribojrina 
Ayahiunissa v. Kulfu 
Ayliffe v. Murray 249, 

Aylwin's Trusts, In re 
Aylwin v. Bray 
Azimunissa v. Dale 



Page. 

. 362 

. 287 

. 367 

355, 362- 

. 367 

. 35& 

. 357 

. 374 

. 133 

. 211 

. 21 

. 186 

. 85. 

. 134 

. 44 

. 37 

. 320 

250, 268 

. 42 

. 198 

. 64 



Babaji v. Krishna 107, 108, 313 

Babaji Rao v. Laxmandas . 382 

Baber's Trust, lie . . .74 

Baboo Raghoo Nath v. 

Byjnath Sahoy . . . 109 

Babu Luohmidhor v. Ekbal . 313 

Babuiam v. Ram Sahai . 104 

Babu Singh v. Bihari Lai . 313 

Bachoha v. Gajadhar . . 104 

Back V. Andrews . . 88, 91 

Backhouse v. Backhouse . 287 

Bacon, Re ... , igg 

V. Bacon . . 203, 209 

Badal v. Tinkori . . . 39g 

Baddley v. Baddley . , 52 

Bage, Bx patte . . . 270 

Bagnall v. Carlton . . 261 
Bagram v. Moses ... 27 
Bagur Ali v. Anjuman Ara 

Begam . . . .394 



TABLE OP CASES 



XXI 



Page. 
Bai Bapi v. Jamnadas . . 361 
Baijnath v. Harikishen . .111 
Bailey v. Gould . 142, 143, 145 
Bai Mahakoie v. Bai Mangla . 48 
Bai Maniokbai v. Bai Merbai . 14 
Bai Motivahoo v. Purushot- 

tam Dyal . . .97, 100 
Bai Motivahu v. Bai Mamubai 38 
Bain v. Sadler 
Bainbridge v. Blair 
Baisnav v. Kishore 
Baker v. Bradley 

V. Carter 

V. Martin 

V. Monk 

V. Read 



. 74 

252, 289 

. 388 

115, 120 

. 264 

. 254 

. 115 

197, 267 

. 148 

. 60 



V. Sebright 

Bakht Bali v. Lakhrani. 
Balakrishna v. MadhowRow. 112 

V. Muthusami 162, 163 

Balaram v. Ramachandra . 26 
Balayya v. Krishnappa . .181 

Balohen v. Scott . . .241 
Baldwin v. Bannister . . 257 
Bale V. Coleman . . .21 
Balfour v. Welland . . 236 

Balkan Fund British Red 

Cross Society v. Johnson . 309 
Ball V. Burnford ... 68 
V. Harris . . . 173 



Balah v. Hyam 
Balls V. Strutt 



219, 222 
249, 293 
382 



Baluswami v. Venkataswami 
Bamanji Manikji v. Maroj 

Palanji ... 12 

Banka Behari v. Rajkumar . 107 
Bankes v. Le Despencer . 22 

Bank of Bombay v. Suleman . 236 
Bank of Hindustan, China, 

and Japan v. Nundolall Sen 26 
Banks v. Carkwright . . 160 
Banubi v. Narsingarao, 393, 394,. 396 
Bapuji Auditram v. Umed- 

bhai Hathesing ... 12 
Barada Prasad v. Gajendra- 

nath .... 196 



Barber, Be . 

V. Tebbit . 

Barclay v. Owen . 
Bardswell v. Bardswell 
Barindra v. R. 
Barker v. lUingworth 
Barling v. Bishopp 
Bailow V. Grant . 
Barnard v. Bagshaw 



Page. 
. 252 
. 137 
. 226 
. 77 
. 130 

249, 293 
. 59 

228, 233 
. 246 



Barnes v. Addy 



■ V. Grant 
V. Pinkney 



110, 135, 188, 192, 
310 
76 
. 287 
. 44 
112, 246 
. 104 
. 383 
. 105 
90,57 
. 230 
. 250 
. 84 
. 284 
. 149 
85, 86, 87 



Barnett v. Blake . 
Barney, Re . 
Baroda v. Dinobandhu 
Barodaoharan v. Hemlata 
Baroda Kanta v. Chunder 
Barrack v. McCulloch 
Barrell v. Bonn 
Barrett v. Hartley 
Barrs v. Fewke 
Barry, Ex parte 

V. Barry 

Baitlett V. Piokersgill 
Barton v. North Stafford- 
shire Railway Company . 183 
Barwell v. Barwell 121, 258, 267 

Basdeo v. Ghaiib 386, 389 



V. Sri Krishnan 



383 
100 
104 
380 
153, 186 
171 



Bashi Chunder v. Enayet Ali . 
Basi V. Ram Krishna 
Basoo Dhul v. Kishen Chunder 
Bate V. Hooper 

V. Scales 

Bastard v. Proby . . .18 

Batstone v. Salter 51, 84, 86, 89 

Baugh V. Price . . . 297 
Bava Sant v. Ram Ban . . 389 
Bayley v. Bouloott . 14, 56 

Baylies v. Baylies . . . 276 
Baylis v. Dick . . . 241 
Baynard v. WooUey . . 185 
Bayspoole v. Collins . . 67 
Beasley v. Magrath . . 228 
Beavan v. Earl of Oxford . 67 



xxn 



TABLE OF CASES 



Page. 
Meerza Maho- 

. 26 
. 89 
. 310 
182, 218, 275 
. 42 



Bebee Jaun v. 

med Hadee 
Beckford v. Beckford 
Beokford v. Wade 
Beddoe, Re 
Bedaon's Trusts, Be 
Beecher v. Major . 
Beer Pertrab v. Maharaja 

Bajandar .... 
Began Kuer d. Jhari 
Bego Jan v. Lateefun 
Behaii Lai v. Habiba 
Belchier, Ex 'parte . 
Belohior Francisco v. Roque 

Mariano Dos Angos . 
Bellamy and the Metropolitan 

Board of Works, Re . 
Bellasis v. Compton 
Bellasis' Trusts, Re 
Bellringer v. Blagrave 
Benbow «. Townsend 
Benoe v. Gilpin 

V. Shearman 

Benham v. Keave . 
Beningfleld v. Baxter 
Beni Bam v. Kundun 



86 

49 
104 
298 
120 
229 

240 



. 235 
. 87 
54,80 
173, 174 
87 
136 
278 
57 
271 
196 
269, 295, 296 
. 219 248, 
. 181 



Benett v. Wjmdham 

Benjamin, Re 

Benn v. Dixon . . .152 

Bennett, Ex paite 263, 265, 266, 

Bennet o. Gaslight and Coke 

Co 256 

Bennison, Re . . . 245 

Benod Behari v. Manmatha- 

nath . . . .385 

Benode Behari Sur v. 

Surendranath . 
Benodi v. Sitaiam 

J). Soudaminy 



Benson v. Whittam 
Bentley, Re . 

V. Craven 

— - V. Maokay 

' Berkhampstead Free School, 
Ex parte .... 



. 384 
. 363 
. 196 
. 78 
. 274 
109, 258 



Page, 

76, 78- 

. 79- 

. 171 

45, 66, 

165, 167, 175. 

Bethell v. Abraham . 157, 237 

Beulah Park EatatL, In re . 221 

Bhagawant v. Kedaii 56, 57, 61, 69 



Bernard v. Minshull 
Berry v. Briant 

V. Gibbons 

V. Windham 



Bhagban v. Ramanuj 



386, 388, 
389, 390 
314, 316. 
313 



70 



373 



Bhagbat v. Mt. Girja 

Bhagiiathi v. Jokku 

Bhagwanti v. Behari . . 61 

Bhai Gangabhai v. Bhagwan- 

das .... 117 

Bhaskar v. Saraswatibai . 49 

Bhaskarappa v. Collector of . 

North Canara . . .197 
Bhawani i>. Juggernath . 163 

Bhekmarain Singh v. Januk 

Singh . . . .316- 
Bhima v. Dasarathi . . 291 

Bhimram 1>. Sitaram . . 163 

Bhogilal V. Amritlal . . 247 
Bholai;. RamLall. . . 108 
Bhoobun Mohini Debia v. 

Hurish Chunder Chowdhry . 38- 
Bhowan Doss v. Sheikh . . 97 
Bhowany Sunkur Pandey v. 

Purem Bebee . . . 105 

Bhuggobhutty v. Guru Pru- 

aonna ... 12, 375 
Bhuggobutty Prosonno Sen 

V. Gorro Prosonno Sen . 380 

Bhugwan Doss v. Upooeh 

Singh . . . .102 

Bhupati Nath v. Ram Lai 363, 375- 
Bhurabhai v. Bai Rukmani . 191 
Bhurruok Chunder v. Golam 

Shurufi .... 402 
Biba Jan v. Kalb Hussain . 392 
Bibby v. Thompson . . 80 
Bibee Kuneez Fatima d. 

Bibee Saheba . . .392 
Bick V. Motley . . . 205 

Biddies v. Biddies . , 78 



TABLE OF CASES 



XXUl 



Page. 



Page. 



Biddulph V. Williams 


. 84 


Blakeney v. Blakeney 






80 


Biggs V. Peacock . 


. 179 


Blenkinsopp v. Blenkinsopp 




59 


Blkani Mia v. Sheikh Lai 


38C 


Blewett V, Millett . 




111 




393, 398 


Bloyea' Trust, Re , 


263, 266 


Bika Singh v. Luohman Singh 316 


Blundell, Re 


. 


221 


Bill t). Cureton 


65, 69, 71 


Blunt's Trusts, Re 




18 


Billingly v. Critohet 


. 228 


Blyth V. Pladgate 188,209, 210, 


Billaon v. Crofts 


. 42 


220, 


222, 241 


Bindasoondree Dassee v. 




Boardman v. Moaman 




210 


Meheroonissa Khatoon 


. 393 


Bodenham v. Hakyns 




112 


Bindly v. Mulloney 


. 56 


Bodh Singh v. Gunesh 






Bindoo Bassinee Dosses 


t. 


Chunder . 




101 


Boliachand Sett 


. 150 


Bolton V. Curre 




222 


Bindu Basani v. Jahnabi 


. 149 


Bone V. Pollard 


. 


93 


Binka v. Mioklethwait . 


. 222 


Bonfield « Hasaell 




44,51 


Birch V. Wade 


76, 289 


Bonithion v. Hookmore 


216, 250 


Birchall, Re . 


113, 136 


Bonaer ®. Kinnear 




76 


Birch Wolfe v. Birch 


. 148 


Bonney v. Ridgard 




310 


Bird, JBe . . . 


. 241 


Booth, Re . . . 




79,80 


V. Fox . 


. 237 


V. Booth 123, 124, 


194, 208, 


V. Harris 


. 84 






210 


V. Johnson 


. 39 


r). Leyoester 




30 


V. Maybury . 


. 79 


™. T1»,wl« 






87 




V. Wenn 


. 280 


Boreham v. Bignall 






182 


Birkett, In re 


46 359 


Borry, Ex parte 






68 


Birfcs V, Micklelhwaiite 194, 211, 


Boas V. Godsall 






165 




212, 218 


Bostock V. Blaokeney 






171 


Bills V. Betty 


. 210 


V. Ployer . 




14- 


i, 184, 


Biion V. Mount 


. 74 








241 


Bisambhur Naik v. Sudashoeb 


Boa well v. Coafcs . 






271 


Mohapattur 


. 313 


BoBworth, Re 






161 


Biahamber v. Drigbijai . 


. 386 


Bott V. Smith 






59 


Bishan v. Ghaziuddin 


. 101 


Bottle V. Knocker 






52 


Bifihen Chand v. Syed Nadir 381, 400 


Bouoheiett, Re 






125 


Bishop of Hereford v. Adams . 357 


Boulton, Ex parte . 






282 


Bl ac kburn, £x pai U 


. 61 


Boiuaot V. Savage 






300 




115 


Bouafield v. Hodgea 
Bovy V. Smith 
Bowden v. Henderson 






231 




22 






318 
181 


Blackford v. Davis 


. 216 






Blackie v. Clark 
Blad V. Bamfield . 


. 118 
. 30 








. 79 
. 18 


Bowen, Re . 






Blair v. Duncan . 
Blake, Re . 


. 360 
69, 142 








. 295 
. 261 


Bowes V. City of Toronto 




«. Blake 


. 93 


v. Earl of Strathmore 


. 227 


V. Bunbury . 


. 275 


Bowles V. Stewart 




. 112 


Blake v. Gale 


. 126, 196 


Bowman, Re 






. 357 



XXI V 



TABLE OF CASES 





Page. 


Bowman v. Hill 


. 220 


Boyoe v. Edbrooke 


. 226 


Boyd V. Brooks 


. 228 


Boyea, v. Carritti 


. 14 


Brace v. Taylor 


. 149 


Biaokenbury v. Braokenbury 


17,45 


Bradby v. Whitchurch . 


. 225 


Bradford v. Belfield 


. 245 


Bradley v. PeJxoto 


. 39 


Bradahaw v. Fane 


. 174 


Bradwell v. Catchpole . 


. 240 


Braithwaite v. Attorney- 




General 


. 32 


Brajnath Baisakh «. Matilal 




Baisakh . 


. 274 


Brajuahwar v. Buddamidi 


. 59 



Bramamayi Dasi 
Chandra Dutt . 
Brandon v. Astom 
V. Robinson 



Jogea 

. 37 
. 44 

38, 39, 279 
. 137 
160, 246 
. 287 
. 285 
. 236 



Bray v. West 
Brazier v. Camp . 
Brearoliffe v. Dorrington 
;Breeeh Loading Co., Re 
Breedon v. Breedon 
Biioe V. Stokea 194, 200, 203, 206, 

210 
. 224 
. 286 
217, 227, 233 
. 172 
118, 119, 120 
112 310, 246 
Satru V. 

. 387 

144, 213 

. 357 

. 76 

. 219 

284, 286 

. 261 

Ram 

. 105 
112, 246 
Co., V. 

26,30 



Brfdge, Re . 

— — V. Beadon . 

V. Brown . 

Bridger v. Rice 
Bridgeman v. Green . 
Bridgman v. Gill . 
Bridyo Gauranga 

Sudevi Mata 
Brier, Inre . 
Brigga v. Hartley . 

V. Penny . 

Bright V. North 
Bright'a Trusts, Re 
Brignell, Re . 
Brimho Moye Debeea v, 

Dolub Hor 
Brinaden v. Williams 
Britiah South Africa 

Com. de Mooambique 



Page, 

Broadbent v. Varley . . 283 
Broadhurst v. Balguy 167, 194, 203 
Brookaoppw. Barnes, 249, 250, 252 
Brogden, Re . 142, 143, 203 

Brojendra v. Srimutty 

Lukheymoney . . .117 
Brojendro «. Raahbehari . 211 

Brojo Kiahoree Dassee v. 

Sreenath Bose . . 152 

Brojonath Ghose v. Koylaah 

Chunder Banerjee . . 102 
Brooke v. Haynes . . 124, 125 
Brooker v. Brooker . .193 
Brookman v. Rothohild . . 109 
Brooks, Inre . . . 179 
Brophy v. Bellamy . 157, 158 

Broughton v. Broughton 251, 252 

V. Mercer 27, 131 355, 357 

Browell v. Reed . . 138, 175 



Brown, Re . 

V. Burdett . 

V. Carter . 

V. Casamajor 

V. De Tastet 

V. Higgs . 

0. Howe 

V. Kennedy 

V. Litton 

Browne v. Adams . 

V. Cavendish 

V. Savage 



. 185 
. 218 
. 121 
78, 80 
250, 258, 259 
76, 288, 289 
. 274 
70, 117 
. 250 
. 304 
. 71 
186, 279 
. 277 



Browne's Will, Re 

Brown's Trust, In re 

Bruce v. The Presbytere of 

Deet 
Brudenell v. Elwes 
Bruere v. Pemberton 
Brunning, Re 
Brunskill v. Caird . 
Bryant, Re . 
Buchanan v. Hamilton 
Buck V. Shippam , 
Buokeridge v. Glasse 
Buckhurst Peerage, Re 
Buokmaater v. Buokmaster 
Budgett V. Budgett 



34 



. 361 
. 35 
. 170 
. 277 
. 224 
17, 228 
. 289 
74 
123, 289 
. 24 
. 267 
. 228 



TABLE OP CASES 



XXV 



Page. 
Budree Das v. Chooni Lai 1 10, 369 
Budiee Lall v. Kantoo Lall . 316 
Buggins V. Yates ... 77 
Bulbeok t. Silvester . 51 

Bulkley ». Wilford . 112,113 

Bull V. Hallett . . .146 
Buller V. Plunkett . . 286 

Bullock, Ee . . 39, 41 

V. Thome . . 67 

V. Wheatley . . 142 

Bulmer v. Bulmer . . 289 

V. Hunter . . 59 

Bunbury v. Bunbury . . 30 
Bungaeedhui Khettry, Re . 66 
Bunseedhur ®. Kunwar Bin- 

deaeres Dutt Singh . . 316 
Bunwaree Chand v. Muddon 

Mohun . . . .384 

Bura Mai v. Bhagawan Das 97 

Burdiok v. Ganick . 170, 318 

Burden v. Burden . . 250 

Bulge V. Biutton . . . 251 
Burgess v. Wheate 5, 31, 160, 

256, 262, 278 
Burgess's Trusts v. Crawford. 365 
Buijorji V. Dhunbai 61, 63, 64 



Burke v. Jones 
Burley, Be . 
Burn V. Carvalho . 
Burrough v. Moss . 
V. Philcox 



. 74 

. 76 

53 

. 280 

289 

. 279 

. 160 

109, 249 



Burrows v. Lock . 

V. Walls . 

Burton v. Wookey. 

Burtoo Sing v. Bam Purmessur 

Singh . . 316 

Bushnell v. Parsons . . 79 

Butler V. Butler . .187, 222 

Buttanshaw v. Martin . . 277 

Buxton V. Buxton 142, 176, 177 

Buduln. Adal . . .393 

Byam v. Byam . . . 248 

Bykunt Nath Sen v. 

Goboollah Sikdar . . 107 

Byne V. Blackburn . . 79 

JByrchall v. Bedford . 126, 169 



Cadell V. Palmer . 
Cadman v. Cadman 
Cadogan v. Lord Essex 
Cafe V. Bent 
Caffrey i>. Darby . 



Page. 



. 35 
. 227 
. 164 
. 154 
141, 142, 
189, 218 
. 286 



Calisher v. Forbes 
■ Campbell v. Walker, 173, 264, 265, 
266, 267, 270, 271, 296 
Candler v. Tillett 142, 207, 209 

Caney v. Bond . . . 142 
Capplin's Estate, Re . 48, 52 

Carberry v. Cody . . . 123 
Cardwell v. Mackrill . . 301 
Carew, Re . . . 43, 280 
Carmichael v. Wilson . . 227 
Carpenter «. Hariot . 115,267 
Carr v. Living ... 79 
Carruthers v. Peake . . 63 
Carter and Kenderdine, Re 65, 217 
Carter v. Carter ... 50 

V. Palmer . . . 266 

Carteret v. Petty ... 27 
Cartwright v. Pettus . . 29 
Gary v. Cary ... 76 

Cassumali Javerbhai, In re . 163 
Cassamally v. Sir Currimbhoy 

192, 393, 399 
Castle V. Castle ... 79 
Cater, Re . . . .122 
Cavaly Venkata v. Collector 

of Maaulipatam 160, 262, 317 

Cavendish v. Strutt . . 70 
Cliabildas v. Municipal Com- 
missioner of Bombay . 
Chalender and Herington, Re 
Challen o. Shippam 
Chalmer v. Bradley 



Chamber v. Howell 
Chambers v. Goldwin 

V. Minohin 

V. Smith 

— — — V. Waters 



149 
251 
. 145 
239, 266, 267, 
310 
260, 271 
. 216 
205, 241 
. 168 
. 265 



XXVI 



TABLE OF CASES 



Page. 

Champion v. Rigby . . 267 
Chandler v. Tillet . . .216 
Chandra Sankar v. Bai Magan 48 
Chaplin v. Chaplin ... 45 

V. Young . . .261 

Chapman, Re 142, 143, 144, 

166, 167 

, V. Brown . . 46 

Chappie, Re . . . . 251 
Charamudi v. Marriboyina 

Raghavulu ... 37 

Charity Corporation v. 

Sutton . . . 140,249 
Charles v. Jones . . . 109 
Chatarbhuj v. Chatarjit . 3 

Chatlar v. Chote . . .313 

Chattarpat Singh v. Maharaj 

Bahadur . . . .61 

Chaudhri Mehdi Hasan o. 

Muhammad Hasan 
Cheese v. Keen 
Chellam v. Seeni . 
Cherry v. Mott 
Chertsey Market, Re 



. 100 

253, 260 

. 104 

. 365 

. 210 

249, 294 

227, 232 

. 267 



Chester v. Rolfe 
Chesterfield v. Janssen 
Chidambara v. Krishnasami . 320 
V. Nallammal . 152 

V. Poonga Vanam 63 

Chidambaram v. Pichappa . 246 

V. Sami 57, 58, 59 

u. Velu Pillai . 98 

Chettiar v. 

Subramania Iyer . . 101 
Childers v. Childeis 17, 32, 45 

Chillingworth v. Chambers 194, 210, 

222 
China Piohayya v. Pedakotah 60 
Chinna Jiyan Gailu v. Dhurma 

Dosaji . . . .291 

Chinnan v. Ramaohandra . 104 
Chinna Ummayi v. Tegarai 

Chetti .... 44 
Chintaman v. Dhondo Ganesh 

290, 291 



Pizge- 

Chinverappa v. Puttappa . 108 
Chirakkal v. Saidamadathi 

Ayakomba . . . 384 

Chitambur v. Krishnappa . 300 
Chitta Bhula v. Bai 

Jamui . . . 109,264 
Chokalingam ti. Mayandi . 384 

Chotalal v. Manohar . 370, 376 
Choudrani v. Tarini . . 97 
Chowdhry Herasutoottah v. 

Brojo Soondur Roy . 
Chowne v. Baylis . 
Christchurch Inolosure Act, Re 
Christopher v. White 
Christ's Hospital v. Budgin 
V. Granger . 



316 

59 

18 

251 

88 

18 

90, 92 

6 

161, 162 

. 102 

Gooool 

. 109 
95,97 
Rani 

. 38 



Christy v. Courtenay 
Chudleigh's case . 
Chukan v. Poran . 
Chunder v. Hurbuns 
Chunder Coomar v. 

Chunder 
Chunder Nath v. Kristo 
Chundi Churn v. 

Siddheswari 
Chundramoney Dossee v. 

Motilal MuUiok . . 38, 376 
Chunni t>. Hukum . . 247 

Churcher v. Martin . . 192 

Churchill v. Hobson . . 241 

V. Lady Hobson' . 123 

V. Marks . 43, 44 

Civil V. Rich . . .157 

Civil Service Musical Ins- 
trument Association v. 
Whlteman 
Clack V. Holland . 

Claoke v. Carlon . 
Clark V. Clark 

■U.Taylor 

Clarke v. Earl of Ormonde 

V. Malpas . 

V. Ormonde 

V. Ramuz . 



V. Swaile 



. 196 

143, 189- 
. 261 

265, 271 
. 365 
. 160 
. llfr 
. 161 
. 81 

267, 269' 



TABLE OF CASES 



XXVU 



Page. 

. 120 
. 251 
. 174 
. 189 
85, 111, 120 
. Ill 



Clarkisbn v. Hanway 

V. Robinson 

Clay V. Rufford 
Cleary v. Fitzgerald 
Clegg V. Edmondson 

V. Fiahwiok . 

Clements v. Hall . 

Clephane i;. The Loid Provost 

of Edinburgh 
Clergy Orphan Corporation, Be 
Clifton V. Goodbun 

— • V. Lombe . 

Clissold's Settlement, Se 
Clough V. Bond 



111 



ii. Dixon 
V. Lambert 



365 
374 
. 34 
. 76 
. 135 
142, 164, 
203, 241 
209 
51 
76 
135 
83 
44 
165 
189 
267 
149 
35 
17 
111 
41 



Clowdsley v. Pelham 
Clutton, Re . 
Coard v. Holderness 
Cobgrave, -Be 
Cock V. Goodfellow 
Cocker v. Quayle . 
Cockrell v. ©holmeley 
Coffin V. Coffin 
Cole V. Sewell 

V. Wade 

Colegrave v. Manby 
Coleman, Re 

V. Bucks and Oxon 

Bk. . . . 112,246,309 

V. Sarrel . . 51 

Coles V. Treeothiok . 266, 269 

Colgan V. Administrator- Ge- 
neral of Madras . 46, 375 

Colinial Bank v. Winney . 283 

Collector of Maaulipatam v. 

Cavaly Venkata . 160, 262 

Collins V. Burton ... 65 

V. Cary . . . 251 

V. Stimson . . .302 

V. Vining . . .158 

CoUinson v. CoUinson . . 92 

V. Lister . 217, 221 

1 V. Pattriok . 53, 54 

Collynath v. Chundernauth . 37 



Page. 

Colman v. Croker . . 65 

Columbine v. Penhall . . 59 
Colyer v. Finch . . .236 
Com. de Mooambique v. 

British South Africa Co. 27,29,46 
Comiskey v. Bowring-Hanbury 

77,78 
Commissioners of Charitable 

Donations v. Archbold . 289 

V. Wybrants 

191, 300, 374 
Commissioners of Public 

Works «.Harby . . 286 

Congregational Church, 

Smethwiok, Re . . . 247 
Consol, etc., Co. v. Riley . 287 

Consett V. Bell . . .220 
Consterdine v. Consterdine . 293 
Conway v. Feuton . . 224 



Conyngham o. Conyngham 124, 125 
Good V. Good 
Cook V. Crawford 

V. Gwavas 

Cooke V. Fryer 
V. Lamotte 



Cookes settlement, In re 
Cookney v. Anderson 
Coombs V. Coombs 
Coope V Carter 
Cooper V. Cooper . 

V. LarocKe 

V. Pliibbs . 

V. Wyatt . 

Copinger v. Crehane 
Coppin V. Fernyhough . 
Coppring v. Cooke 
Cornish v. Clarke . 
Corporation of Gloucester v, 

Osborn . . . . 
Corporation of Newcastle v. 

The Attorney-General 
Corsellis, Re . . . 

Corser v. Cartwright 
Cosser V. Radford . 
Cossinath Bysaok v. Hurro- 

soondery . . . . 



29 

. 138 

81 

22 

. 114 

. 179 

27 

. 228 

. 193 

222 

37,38 

111 

42 

158 

112 

109 

64 

361 

66 
251 
236 

73 

128 



XXVIU 



TABLE OF CASES 



Page. 
Costabidie v. Costabidie 80, 156 

Costa Rioa Railway Co. v. 

Forwood . . 256, 260, 263 
Cothay v. Sydenham . . 180 
Cottam V. Eastern Counties 

Railway Co. . . 205, 278 
Cotteen v. Missing . . 53 

Cottington v. Fletcher . 45, 81 

Countess of Lincoln v. Duke 

of Newcastle ... 22 
Courtney v. Rumley 
Coutts V. Aokworth 
Couturier, Re 
Cowair v. Melborne 
Cowasji V. R. D. Setna 
Cowasji Nowroji v. Rustomji 
Cowell V. Gatoombe 
Cowie, Re 
Cowley V. Byas 
Cowan V. Harrison 
Cox V. Beckett 
Crabb v. Crabb 
Crackelt v. Bethune 
Cradcock v. Piper 
Crallan v. Oulton . 
Cranstown v. Johnston 
Craven v. Bradley 
V. Craddock 



Crawford v. Forshaw 
Crawley v. Crawley 
Crawshay v. Collins 
Cresswell v. Dewell 
Crewe v. Dicken 
Criohton v. Crichton 
Crockett v. Crockett 
Croder v. Stewart . 
Crofton V. Orrasby 
Croome, Re . 
Crop V. Norton 
Cross, Re 

V. Lloyd & Greane 

Crosskill v. Bower 
Crossley v. Crowther 
• V. Elsworthy 

Crowe V. Ballard . 



218 

70 

277 

357 

192 

37 

. 423 

256, 278 

. 149 

. 77 

. 44 

92,93 

171, 318 

251 

74 

30 

44 

175 

138 

152 

250, 258 

180, 198 

245 

194 

80 

228 

299 

81,84 

85 

197 

366 

261 

293 

62, 69 
. 264 



Page 
Crunden and Meux's Con- 
tract, Be . . . . 245 
Cubishley'a Trusts, iJe . . 181 
Cuff V. Hall . . . 177, 178 
Cuffrey v. Darby . . .217 
CuUingworth v. Loyd . . 74 
Culpeppers v. Aston . . 81 
Cummins v. Cummins . 124, 267 
Cunningham and Frayling, Re 245 
Cunningham v. Plunket 
Curnick v. Tucker 
Currie v. Goold 

V. Nind 

Cursandas v. Vundravandas 
Curtis V. Curtis 

V. Lukin 

V. Perry 

V. Price 

Curties's Trust, Re 
Custance v. Cunningham 
Cuthbert v. Purrier 



52 

76 

183 

56 

861 

233 

277 

32 

65 

84 

84 

181 



D 



Dadapa v. Vishnudas . . 61 

Dagdu II. Balvant . . . 104 

Daivasigomony v. Nataraja . 384 
Dale, Re . . . .135 
Dalip Singh v. Chaudhrain . 100 
Dallas, Re . . . . 286 
D'Almaine v. Moseley . . 83 

Dalrymple v. Khoondkar Azee- 

zul Islam .... 398 
Damodar v. Bhat Bhogilal . 290 

V. Lakhan . . 382 

Damoodur Mohapattur v. Birjo 

Mohapatter . . . 317 
Dance v. Goldingham 229, 230, 294 
Daniels v. Davison . . 299 

D'Arcy v. Croft . . . 227 

V. Hall . . .258 

Darke v. Martyn . . .146 

V. Williamson . 220 225 

Dartnell, Re . . 161, 278 

Darvill v. Terry ... 59 
Dasandhay v, Muhammad . 320 



TABLE OF CASES 



XXIX 



Dashwood v. Magaiao 
Daa Mercea v. Coneas 
Dasaa Ramaohandra v. Naia- 
simha * . . . . 
Daubeny v. Cookburn 
Davall V. The New River Co. . 
Davenport v. Stafford . 
Davey v. Durrant . 
David Payne & Co., Re . 
Davidaon, Be . . . 
Daviea, Be . 

V. Hodgaon 

V. Otty 



Page. 
. 148 
. 355 



Davis, Be 

— — I). Dandy 

V. Hutchings 

V. Jenkina . 

V. Spurling . 



381 

65 

160 

. 171 

. 229 

. 285 

. 84 

. 224 

. 185 

45, 56, 87 

. 257 

. 216 

. 180 

. 371 

241, 243 

Davia Hannen v. Hillyer, In re 363 
Davia's Trusts . . .135 
DaviaoD, Be . . .211 

Dawson V. Clarke . 84, 213, 217 

— V. Hearn . . . 277 

V. Small . . 17, 46, 83 

Day V. Kelland . . .260 
Dayal Jairaj v. Jivraj Ratansi 
Deacon v. Colquhoun 
Debendronath v. Adir Churn . 
Debendro Nath Mulliok v. 

Odit Churn Mulliok . 
Debnath Roy Chowdhry v. 

Gudadhur Dey . 
De Bussche v. Alt . 
De Cruz v. D'Silva 
Deeth v. Hale 
De Hoghton v. Money . 
Delaoour, In the goods of 
Delane v. Delane . 
Delany v. Delany . 
De La Salle v. Moorat . 
Delhi and London Bank v. 
Wordie .... 
Delroaa Banoo Begam v. 
Nawab Syed Aahgur Ally 
Khan .... 
Delvea v. Gray 



298 

87 

387 

387 

99 
196 
369 
277 

65 
124 

85 
137 
178 

26 



396 
263 



De Manneville v. Crorapton 
Dening v. Ware 
Dent V. Bennett . 
Denton v. Daviea . 
V. Denton 



. 248 

. 51 

113, 117 

189, 302 

147, 275 

269 



«. Donner 

Dao V. Knight ... 70 
Deohi V. Inaitullah . . 62 

De Quetteville Be . . 223 
Daring w. Earl of Winohelaea . 211 
Derry v. Peake . . . 279 
Desahamps v. Miller . . 27 
De Silva v. De Silva 95, 97, 99 

De Souza v. Colls ... 26 

V. De Souza 140, 141, 

153, 177, 154 

V. Secretary of State 124 

De Themminea v. De Bonnes - 

tal 366 

Detmar v. Metropolitan and 

Provincial Bank . . 116 

Devaji v. Gadabhai . . 100 
Devaaigomani v. Palniappa 383, 384 
Devaynea v. Robinson 173, 177, 189 
Devey v. Thornton . 182, 275 

De Viame, Re . . .90 
Devki Prasad v. Inait-Ullah . 393 
Dewar v. Brooke . . . 241 
Dhanjaboy v. Meherally . 369 

Devshanker «. Motiram . . 361 
Dhanjibhai v. Kharsetji 

Ratnagar . 
Dhan Singh v. Har Narain 
Dharmadaa v. Amulyadhan 

V. Gosta Behari 

Dharman v. Balmukund 



12 
48 
196 
381 
247 
94,97 
264 
181 



Dharni v. Kriato . 
Dharnikota v. Budharaju 
Dhondo v. Ganesh 
Dhonender Chunder Mookerjee 

V. Mutty Lall Mookerjee . 264 
Dhoorjeti v. Venkayya . . 23 
Dhuncooverbhai v. Advocate- 

General . . 369,386,389 
Dhurm Das Panday v. M. S. 

Shama Soondri Debiah . 95 



XXX 



TABLE OF CASES 



Page. 
Dhurrum v. Kissen . . 291 

Dibbsv. Goien . . 184,221 
Dick V. Andsley . . .362 
Dickenson v. Teaadale . .191 
Diokaon o. Swansea Railway 

Co 280 

Diggles, Be . . . 76, 78 

Dilkes V. Broadmead . .186 
Dillon V. Coppin . . 51, 52 

Dillwyn v. Llewelyn . 51, 55 

Dimes v. Scott . . .199 
Dimsdale v. Dimsdale . . 121 
Dinsha Petit v. Jamsetji . 369 

Dix V. Burford . . .126 
Dixon V. Charlesworth . . 32 
Dobson V. Land . . 145, 257 
Docker v. Somes 109,249,256, 

257, 259, 260, 271, 320, 349 
Doe V. Ball .... 56 

». Harris . 123, 124, 137 

V. Manning ... 56 

V. Routledge ... 65 

V. Rusham . . 66, 70 

V. Spencer . . .174 

d. Howard v. Pestonji 

Manockji .... 378 

d. Jaun Bibee v. AbdooUah 

Barbar . . 393, 396, 400 

d. Roberts v. Roberta . 45 

Doering v. Doering . 222, 280 

Dolan V. Maodermot 18, 359, 361 
Domnes v. Cottane . .219 

Donaldson v. Donaldson . 53 

Dongan v. MoPherson . . 266 
Doran v. Willshire . . 236 

Doody, Ee . . .251, 260 
Doorganath v. Ram Chander . 383 
Doorga Pershad Roy Chow- 

dhury v. Tara Persad Roy 

Chowdhury . . .319 

Domford v. Dornford . 170, 187 

Dose Thimmanna v. Krishna . 318 

Douglas, Be . . . .289 

V. Andrews . 228, 233 

V. Arohbutt 250, 264, 261 

■- V. Congreve . . 21 



Page. 
Douglas & Powell's Contract, 

Be .... 179 

Dove V. Everard . . 125, 137 
Dover, Be . . . .126 
Dowgan v. McPherson . . 268 
Dowlat V. Keshao ... 60 
Dowley v. Winiield . . 181 

Downea v. Bullock . . 185 

^— V. Grazebrook 172, 264, 

265, 268, 269 
Downings' Residuary Estate , Be 78 
Dowse V. Gorton . . . 224 
Doyal Chund MuUick v. 

Syud Keramut Ali 392, 397, 400 
Doyle t). Blake 124, 136, 181, 

209, 240, 243 
Doyley v. Doyley . . . 365 

V. Sherratt . . . 246 

Drake v. Whitmore . .174 
Drayson v. Pocock . .171 

Drew V. Martin . 88, 90, 91 

Dring ». Greetham . . 229 

Droaier v. Brereton . .186 
Drummond v. Drummond . 27 

?). Tracy . . 135 

Dublin and Rath Cpole Rail- 
way Co., Be . . . 280 
Du Bochet, Be . . .34 
Dufaur v. The Professional 

Life Assurance Co. . . 283 
Dujai V. Shyam Lai . . 103 
Duke of Leeds v. Earl of 

Amherst . 
Duke of Marlborough, Be 
Duke of Norfolk v. Brown 
■ V. Howard 



. 196 

87, 88 

87 

35 

35 



Duke of Norfolk's case . 
Duke of Rutland's Settled 

Estates, Be . . , 226 
Dumas, Be . , . . 135 
Dummer v. Corporation of 

Chippenham . . .133 

^— 1>. Pitcher . 90 91, 93 

Dumper v. Dumper . . 92 

Dunbar v. Tredenniok 267,296. 

297, 298, 299, 3Q0 



TABLE OF CASES 



XXXI 



Page. 

. 232 

173, 230 
. 181 
. 83 
. 229 



Duncombe v. Nelson 
Dunn, Re 

V. Flood 

V. Snowden . 

Dunnage i. White 
Dunnan, Ex parte . 
Dunning v. Earl of Gains- 
borough .... 177 
Durga V. Bhagwan . . 101 

V. Chanchal . . 380 

V. Chintamoni . . 150 

Durga Prasad v. Asa Ram . 311 

V. Prankrishna 97 

Dutton V. Brookfield . .173 

cj. Thompson . 70, 217 

Dwarkada* v. Dwarkadaa . 81 
Dwarka Nath Bysaek v. 

Banoda Persaud 358, 363, 377 
Dyer v. Dyer . . 85, 88 

Dyson v. Mayor . . . 363 



Eager v. Baines . . . 188 
Eales V. England ... 76 
Earl Cowley v. Wellesley . 226 

Earl Granville v. M'Neile . 126 

Earl of Ardglasse v. Musohamp 29 
Earl of Kildare v. Eustace . 27,29 
Earl of Kingston v. Lady 

Pieiepont ... 32 

Earl of Portsmouth v. Fellows 290 
Earl of Stamford, Be . . 288 
Earl Powlet u. Hobert . 210 

Eastern Counties Railway 

Co. ti. Hawkes . . . 175 
East Green Stead's ease 300, 374 
East India Co. v. Henchman . 109 
East Indian Railway Co. 

V. The Bengal Coal Co. 26,30 
Eaton V. Watts ... 77 
Easton v. Landor . . . 275 
Eaves «. Hiokson . 181,183,241 
Ebbern v. Fowler ... 34 
Ebrahimbai v. Fulbai 60, 63, 61, 

64.66 



Page. 
Ebrand v. Dancer ... 86 
Ebsworth and Tidys' Contract, 

Be 247 

Eoolesiastioal Commissioners 

V. Pinney . . 217, 220, 221 



Ede V. Knowles 
Edwards v. Edmvmds 

V. Edwards 

V. Grove 

V. Jones . 

V. Hat ben 

«. Hood Barss 

V. Lewis . 



50 



Beles V. England 
Egbert v. Butter 
Egerton v. Earl Brownlow 
Eland v. Eland 
Eley V. Read 
Blkinf V. Cullen . 
EUenborough, Be . 
Elliot V. Elliot 
Elliott V. North Eastern 

way Co. 
Ellis V. Barker 

V. Houston . 

V. Selby 

Ellison V. Airey 

V. Ellison 

Ellison's Trusts, Be 
Else V. Barnard . 
Elworthy v. Harwy 
Emma Silver Mining 

Grant 
England v. Downs 
Ernest v. Croysdill 
Erusappa v. Commercial 

Land Mortgage Bank 
Eshan Chunder Roy 

Monomohini Dassi 
Espin V. Pemberton 
Evan V. The Corporation 

Avon 
Evans, Be . 

V. Bear 

^— — V. Benyon . 
V. Bioknell 



. 64 
. 178 
. 35 

233, 288 
. 52 
. 58 
. 211 
. 109 
. 76 

142, 207 

• 18 

235, 236 

. 109 

. 21 

23, 53, 64 

92,93 

Rail- 

149 



65, 



Co. 



156 
33 
360 
254 
67, 69 
137 
231 
224 

261 
141 
303 

109 



387, 388 
. 285 

of 

128, 134 
. 224 
. 146 

194, 222 
. 216 



XXXll 



TABLE OF OASES 



Evans v. Evans 

V. Jaakaon . 

V. John 

Evelyn v. Templer 
Everett v. Prythergoh 
Everitt v. Bveritt . 
Evroy v. Nicholas 
Ewing V. Ewing 
Exel V. Wallace 
Exhall Coal Co, Re 
Eyre v. Dolphin 

V. Wynn-Maokenzie 

Eyston, Ex parte . 



Page. 

. 170 

174, 226 

125 

51 

295 

70, 217 

132 

27 

18 

220 

112 

251, 260 

. 43 



Faez Buksh v. Fakeeruddeen 58, 99 
Pakhir-ud-din v. Kifayatul-lah 396 
Fakira v. Majho . . 60, 61 

Fakiri v. Tasadduq . .211 

Fakir Shai v. Chandmoni . 105 

Pakirudin v. Ackeni . 290, 291 
Palkner v. Equitable Rever- 
sionary Co. . . 230,231 
Fani v. Surjya . . . 181 
Fanindra v. The Administra- 
tor-General of Bengal . 357 
Farmer v. Daan . . . 271 
Farrant v. Blanohford . . 197 
Patema Bibi v. The Advocate- 
General . . 35, 393 396 
Fatima Bibee v. ArifE lamailjee 392 
Fauset v. Carpenter . . 44 
Pawoett V. Whitehouse . . 109 
Pazal V. Imam . . .101 
Pearns v. Young . . 152, 217 
Peatherstonhaugh ». Fenwick 111 
Fegredo v. Mahomed Mudessur 397 
Fellows V. Mitchell . 199, 200 
Fenwick v. Greenwell . . 189 
Fenwick Stobait Co., Re . 285 
Feofiees of Heriot's Hospital 

t>. Ross . . . 216,217 
Ferguson v. Ferguson . . 145 

V. Tadman . . 81 

Perrars v. Cherry . . . 300 



Perrier v. Farrier . 
Flamank, Re 
Field V. Field 

V. Lord Donoughmore 

I). Peckett 

Finch V. Pinch 

V. Peaoott 

Finden v. Stephens 
Pink V. Maharaj . 
Pinlay v. Howard . 
Pirmin ti. Pulham 
Fish, Re 
V. Klein 



. 235 

. 69 

. 216 

. 74,182 

. 177, 227 
. 88 
. 221 
78 220 
. 191 
. 289 
122, 275, 276 

. 251, 253 
. 132 



Pisk V. Attorney-General 45, 46, 365 



Pitch V. Weber 
Pitzerald, Re 

V. Jervoise 

V. Nodd . 



82, 84 
38. 279 
. 177 
. 84 

Fitzerald's Settlement . 51, 73 

Fletcher v. Collia . . .194 

V. Fletcher 61, 55, 70, 293 

V. Green 167, 199. 211 

Flookton V. Bunning . . 258 
Flora Cronan v. Official As- 



signee of Madras 
Ployer v. Bankes . 
Pobabrooke v. Balguy 
Foley ». Burnell 

V. Hill 

V. Parry 

V. Wontner 

Forbes v. Ball 

V. Limond 

V. Peacock 

——— V. Ross 
Ford V. Hopkins 

V. Stuart 

Ford and Hill, Re 
Fordham v. Spieight 

V. Wallis 

Pordyce v. Bridges 

1). Willis . 

Foreaux, In re 
Forest Gold Mining Co. 
Forrest v. Forrest . 
Forshaw v. Higginson 



66 

35 
258 
293 
306 

76 
367 

76 

74 
234, 236 
164, 318 
303 

67 
236 

76 
186 
289 
48,88 
358 
260 

89 
225 



TABLE OP CASES 



xxxni 



Page. 



Forahaw v. Higginson 

V. Welsby 

Forster v. Abraham 

V. Ridley . 

FortesDue v. Barnett 
Foster v. Cookrell . 

V. Dawber . 

V. Deacon . 

V. Elsley . 

V. Hale 

Fosters' Trusts, Re 
Fowkes V. Pascoe . 
Fowler v. Fowler . 

V. Reynal . 

Fox V. Fox . 

V. Hawkes 

V. Maokreth . 

Francis v. Francis 
Franco v. Franco . 
Fraser v. Murdock 

V. Palmer . 

V. Thompson 



Frederick v. Hartwell 
Free Church of Scotland 

Lord Overtoun . 
Freeman v. Fairlie . 

V. Laing 

V. Pope . 



226, 228 
56, 69, 118 
. 135 
. 250 
53, 213, 283 
283, 287 
137 
81 
78 
49 
419 
83, 84, 89, 90 
45,46,359 
. 166 
77,78 
. 52 
264, 297 
167, 220 
. 210 
. 221 
25 
. 67 
. 179 



G 



. 367 
136, 160 
. 285 
58, 59, 69 
252, 253 
. 186 
. 248 
59,64 
. 198 
. 282 
. 277 
135, 169, 303, 
304 
Fruthoo Bibee v. Bhuvurt . 380 



Freeman's Settlement, Be 
Fremen, Re . 
French v. Davidson 

V. French . 

V. Hobson . 

Freshfield Trust, Re 
Friend, Re . 
Frith V. Cartland 



Fry V. Fry 

V. Lane 

V. Tapson 

Fuller V. Knight 

V. Redman 

Futtoo Bibee v. 

Bhukut . 
Fyler v. Fyler 
A, LT 



145, 177, 227, 231 
. 120 
. 229 
. 173 
. 229 



Bhurrutlall 



. 398 
189, 246 



Q.,Re 79 

Gajapati v. Bhagwan Daa 386, 390 
Gale V. Williamson . . 62 

Games, Ex parte . 60, 62 

Ganapati Pillai, Inre . . 247 . 
Ganapati v. Savithri . . ' 290 
— — — V. Sri Vedavyasa . 248 
Gandapuri v. Chettapuri . 389 

Ganendra Mohan Tagore v. 

Upendra Mohan Tagore . 160 
Gangabai t).. Thava MuUa . 361, 

363, 377 
Gangalu v. Anoha . . .317 
Gangaram v. Ramsaran . . 383 
Ganoda Sundari v. Nalini 

Ranjan .... 227 
Gardiner v. Downea . . 223 

V. Fell . . .136 

Gardner v. Ennor . . .117 
Garner v. Hannyngton . .215 
Games, Be . . . . 132 
Garrard v. Lord Lauderdale . 51 
Garrett v. Noble . . 142, 177 

— V. Wilkinson . 90, 113 

Garrick v. Taylor . . 86, 87 

Garth V. Cotton . . 147, 148 
Garthshore v. Chalie . . 227 
Gasooigne v. Thwing . . 86 
Gaskell v. Harman . . 141 

Gasquoine, Re 207, 216, 229, 245 
Gauranga Sahu v. Sudevi Mala 386 
Gaur Mohan v. Madan Mohan 388 
Gaya Prasad v. Emp. . . 130 
Geaves, Re . . . . 140 
Geaves v. Strahan . . 141 

Gee V. Liddell ... 50 
Gent V. Harrison . . . 226 
George III, In the Goods of 

His late Majesty . . 127 

George v. George . . . 226 
Gerald Edward, Be . . 224 

Gerards Settled Estates, Be . 227 
Geresh v. Bhuggobutty . . 120 
Ghanasham v. Maroba . . 149 



XXXIV 



TABLE 01' OASES 



Ghelabhai v. Uderam 
Ghost V. Waller 
Ghulam v. Gulzari 

V. Shiv Nath 

V. Teja 

Ghulam Husaain v. Aji Ajam 
Gibbins v. Taylor . 
Gibbs V. Rumaey . 
Gibson v. Jeyes 

!- V. Overbury 

V. Russell . 

<■ V. Smith 

■- V. Wells 



Giddings v. Giddings 
Gilbert v. Overton 
Giles, Re . . . 
Gill V, The Attorney- General 
Gillett V. Pepperoorn 
Gilliland v. Crawford 
Gilroy v. Stephens 
Gilurt V. Gonard . 
Girdharee Lall v. Kantoo Lall 
Girdhari v. Ram Lai 
Girdharlal v. Naranlal . 
Girijanund v. Sailajanund 12. 

380, 397 
Girish v. Anundo 
Gitabai i). Balaji 



Page. 
370, 386, 391 
. 241 
. 393 
. 300 
. 97 
380 
. 189 
. 84 
114, 265, 268 
. 283 
. 118 
. 149 
. 147 
. Ill, 112 
53, 69, 70 
. 224 
209 
109 
227 
170 
308 
314 
353 
290 



Glaister ». Hewer 

Glegg ». Reea 

Glough V. Bond 

Gluokstein ti. Barnes 

Glyn V. Hood 

Gnanabhai v. Srinivasa 

Gnanasambanda v. Kandasami 

381, 390 
I). Velu 33,382 



, 191 
23 

, 90 
. 69 
. 246 
. 109 
. 286 
62,105 



Gobardhandaa v. Ramooover 
Gobardhan Seal, In re . 
Gobind Deo v. Harnarain 
Gobindmani Daai «. Sham Lai 
Gobind Proaad v. Gembi 
Godden v. Ciowhuist 
Godfrey v. Poole . . 62, 

V. Watson 

Godaal v. Webb 



49 
103 
257 
151 
386 

41 

63,73 

216 

53 



Godson V. Ellison . 
Gogun Chunder Sein 

dooiga 
Gokuldas v. Valibai 
Gokul Nath v. Issur 
Golam V. The Official 

of Bengal . 



Page. 

. 275 
!). Joy- 

. 151 
. 123, 271 
76, 361, 363 
Trustee 

56, 73 



Golam Hussein v. Bank of 

Bombay . . . .236 
Golden v. Gillam . . . 59, 62 

Goldsmith v. Russell . . 65 
Goluk Monee Dassee v. Kishen- 

pera Kanoongee . 150, 151 

Gomley D.Wood . 251,252 

Gonry v. Coulfield . . .159 
Gooohe's Case ... 56 
Goode V. Burton . . 141, 215 
Goodenough v. Tremands . 153 
Goodman «. De Beauvoir . 294 
Goodson t). Ellison 223, 275, 

276, 278 
Goodwin «. Fielding . .172 
Goodwin v. Gosnell . . 188 

Goodwin's Trust, Inre . . 33 
Gopal V. Bank of Madras . 58 

■». Kartiok . . 386 

-^-^— «. Radharaman . . 386 
Gopal Chaud Pandee v. Babu 

Kunwar Singh . . • 375 
Gopal Dei i). Kanno Dei . 369 

Gopee Kishen v. Thakerdaa . 388 
Gopeekrist Gosain v. Gunga- 

persaud Gosain . . 90, 95, 97 
Gopeenath Naik «. Jadoo Ghose 107 
Gopi V. Markande . . . 105 
Gopikishen «. Thakoordas . 387 
Gopi Narain v. King Behari 109, 264 

126 
48 
125 
362 
218 
105 
278 



Gore V. Bowser 
Gordhandaa v. Ramooover' 
Gordon, iJe . 

jj. Craigie . 

w. Traill 

Gopi Nath i>. Bhugwat . 
Goring V. BiokerstafE 
Gorringe v. It well India Rubber 
Co. . . . 53,283,286 



TABLE OF OASES 



XXXV 



Page. 
Gosard v. Riyett-Carnac . 36 

Gosavi V. Revert ... 37 
Gosling V. G.oaling . 88, 277 

Gossaiji V. Gossain. . 100, 104 

Goasain Dowlat v. Bisseasur 

Geei ,. . . 389,390 
Gossain Ramadhan v. Gosaain 

Dalmir . . . .100 
Gosaami Sri Gridharyi v. 

Ranianlalji . . . 387 

Goswami a. .Madhowdas . 380 

Gott V. Nairne . . . .46 
Gould V. Fleetwood . . 254 
Goureekanth Daas v. Bhogo- 

butty Dasaee . . . 150 
Governors of Christ's Hos- 
pital, Ex parte . . . 175 
Govinda v. Lalakishen . 100, 107 
Govindrav v. Rayji . . 100 
Gower v. Mainwaring . 17, 288 
Graham v. Birkenhead Rail- 
way Co 195 

V. Hill . . .123 

Graig v. Wheeler . . .155 
Grandumal v. Sitabai . . 160 

Grange v. Tiving , . . . 131 
Grant v. Gold Exploration, 

etc.. Syndicate, . . 260 

Gray v. Haig . . .160 

V. Lewis . . . 299 

V. Siggers . . .155 

V. Warner . . . 271 
Grayburn v. Clarkson . . 177 
Graves v. Dolphin . 38, 279 

V. Strahan . .164 

dreat Luxembourg Railway 

Company I). Magnay . . 260 
Greedharee v. Nundokissore . 388 
Green, Ex parte . . . 227 

V. Bank of England . 86 

V. Britten . . .155 

V. Ingham . . . 283 

V. Marsden . . 77 

V. Paterson . . 51 

V. ?,utheiford . . 133 

1 Rutherforth . . 374 



Page. 
Green v. Spicer . . . 39, 279 
Greender Chunder Ghoae v. 

Mackintosh ,. . 191,301 
Greenhouse,, Ex parte . . 390 
Greening v. Beokford . . 287 
Greenwell v. Porter . . 231 
Gregory v. Gregory 197, 267, 298 
Grenville Murray v. The Earl 

of Clarendon ... . 222 
Grey v.. Grey 88, 91, 92, 93 

Gridharee v. Nundokishore 381, 386 

V. Rumanloljee . 386 

Gridhari v. Government of 

Bengal . . . 160,262 
Griffin, Ex parte . 48, 53, 144, 246 

In the goods of 

, V. Griffin . 



Griffith V. Owen . 

— , V. Ricketts 

Griffiths V. Evans . 

V. Porter 

V. Robins 



. 124 
109, 111 
. Ill 
. 71 
. 76 
185, 194, 241 
120 
236 
142 
45, 85, 86, 87 
150 
267 
248 



Groom v. Booth 

Grove V. Price 

Groves v. Groves , 

Grose v. Amirtamayi Dassr 

Gubbins v. Creed . 

Gude V. Worthington 

Gulam Hussain Saib Saiyad v. 

Adji Ajam Saib Kuraishi 397, 399 
Gulain Jafar v. Masluddin . 97 
Gully V. Bishop of Exeter . 68 

V. Cregoe ... 80 

Gurban v. Gonder . . 104 

Gurdi.t V. Sher Singh . . 360 
Gurulinga v. Ramalaksh- 

mamma .... 152 
Gurusami v. Ganapathi . . 316 
Guruya v. Rangammal . . 151 
G. Venkanna v. G. Narasimham 151 
Gyana Sambantha v. Kanda- 

sami .... 381 

H 

Habergham v. Vincent . . 82 
Habibullah v. Kayac . . 99 



XXXVl 



TABLE OP CASES 



Page. 

Hackett v. M'Namara . . 174 
Haidar Ali v. Nawab Ali Khan 130 
Haigh V. Kaye . 17, 45, 83 

Haines v. Taylor . . .149 
Halt Rom v. Durga Prasad . 300 
Hajee Kalub Hossein v. M. S. 

MehrunBibee . . 392,394 
Hajee NoorooUah v. Meer 

Waris Hossein . . . 402 
Haji Abdul v. Haji Hamid . 375 
Hakeem Meah v. Beejoy Patnee 

102, 103 
Hakimlal v. Mooshahar 59, 60, 

61,64 
Hakim Lai v. Mooshabib . 57 

Hakim Mubammad 1). Nijiban 114 
Haldenby v. Spoffroth . .173 
Hale V. Saloon Omnibus Co. 58, 59 
Hales V. Cox . . 51,66,70 

Halifax Joint Stock Banking 



Co. D. Gledbill 
Hall, Be . . . 
Hall fl. Derby Sanitary Au 

tbority 

V. Tranck 

V. Hall . 

V. Hallet, 

V. Hallett 

V. Heevard 

V. Laver 

V. May 

V. Noyea 

V. Palmer 

V. Saloon Omnibus Co 

V. Warien 

Hallet & Co., Be . 

Hallett V. Indian Mammoth 

Gold Mines Co. 
Halliday v. Hudson 
Hallows V. Llyod . 
Hambrough, Be 
Hamid Ali v. Mujawar 
Hamilton, Be 

V. Ball . 

V. Denny 

■ V. Waring 



51 

226 

362 

. 246 

. 69 

264, 296, 297, 318 

264 271 

109 

220 

245 

267 

51 

58 

366 

309 

222 

82 

140 

227 

393 

76, 227 

45 

111 

32 



Hamilton v. Wright 

Hammond ». Neame 
Hampshire v. Bradley . 
Hampshire Land Co., Be 
Hanbury, Be 
^^— — V. Kirkland . 



V. Spooner 



Page. 
249, 256, 
257, 296 
. 79 
. 276 
. 285 
. 78 
. 167, 
201, 203, 204 
. 255 



Hanchett v. Briscoe . . 197 
Hancom v. Allen . . . 203 
Hancock, Be . . 52, 53 

Hanifa Bibi v. Punnamma 59, 60 
Hankey v. Garrett . . 319 

Hannah v. Hodgson . . 276 
Hanson v. Gardiner . . 149 
Hansraf v. Anant Padmanabh 370 
Hanuman Prasad «. Jadu' 

nandan .... 101 
Hara Gobind v. Puma 

Chandra . 
Hara Lai v. Nitambini 
Harbin v. Darby . 
V. Masterman 



Hardeo Bus v. Jawahir 
Harding v. Glyn . 

V. Harding 

Hardoon v. Belilios 

Hardwari v. Gomi 

Hardwick v. Mynd 

Haidy v. Caley 

I). Metropolitan Land 

and Finance Co. . . 145 

Hargawan v. Baijnath . . 23 
Hargreaves, Be . . . 224 

Hargthorpe v. Milfroth . . 205 
Haridosi v. Secretary of 

State . . . 357,380 

Hari Gobind v. Akhoy . . 10 
Hari Kessen v. Bajrany 

Sahai .... 265 

Harilal v. Bai Moni . . 38 

Harivalabhados v. Bhai 

Jivanji . . . .117 
Harland v. Binks . , 60, 73 
V. Trigg . 76, 77 



104 

26 

251 255 

277 

130 

76 

53 

221 

128 

229 

189 



TABLE OP CASES 



xxxvn 



Harle v. Jarman . 
Harman v. Richard 
Harnard v. Webster 
Harmuaji v. Cowasji 
Hariia v. Harris . 

V. Pyher . 

V. Truman 

V. Tremenheere 

Harrison, Re 

V. Ashe . 

V. Harrison 

V. Higaon 

— — V. Randall 
— — — ^ V. Rowley 

V. Thexton 

Harrison's Trusts, 
Harper v. Hayes . 
Harvey k. Mount . 
Hart V. Tribe 
Hartley v. Burton 
Hasanali v. Esmailji 
— ^— — V. Ismail Jee 
Hassan v. Mt. Razia 
Hasties' Trusts, Re 
Hatch V. Hatch 
Hathornthwaite v. Russell 
Hattat's Trusts, Re 
Hatton V. May 
Hawkins v. Chappel 
Hawkins' Trusts, Re 
Hawthorne, In re . 
Hay, Ex parte 

v. Bowen 

V. Earl of Coventry 

Hayter v. Trego 
Hazi Arjun v. FarutuUa 
Hazi Hasan v. Sagun 
Heath v. Crealock 298, 

Hearle v. Greenbank 
Heartley v. Nicholson 
Heighington v. Grant 
Hemanginee Dossee v. Jogendro 

Narain Roy 
Hemohunder «. Surnomoyi 
Hemming v. Maddiok 
Henderson v, Molver 



. 267 
59,68 
. 187 
. 56 

185, 289 
. 155 
. 308 
. 117 

34, 561 
. 212 
. 171 
. 33 
. 225 
. 137 

144, 165 
. 132 
. 172 
. 117 
. 76 
. 276 

114, 260 
. 109 
. 59 
33, 728 

117, 121 
. 295 
. 135 
. 43 
. 178 
. 255 
. 30 
. 233 
. 182 
. 35 
. 367 
. 101 
. 400 
, 300, 301 
. 131 
50, 51, 52 
. 170 



105 
151 
221 
255 



Hennessey, Ex parte 
Hennessey v. Bray 
Henry v. Armstrong 
Henson, Re . 
Hep worth v. Hep worth 
Heioy V. Dinwoody 
Heme v. Benbow . 
Hethersell v. Hales 
Hervey, Re . 
Heugh V. Soard . 
Hewett V. Foster 



Hext V. Gill . 
Hibbard v. Lamb . 
Hibbert i). Hibbert 
Hiohens v. Congreve 
Hickman v. Upsall 
Hicks V. Hicks 
Hidait-oon-nissa v. Syud 

Hossein 
Hiddingh v. Denyssen 
Hide V. Haywood . 
Higinbotham v. Holme 

V. Boyle . 

V. Buckley 

V. Crook 

». Hill . 

V. Magan 

V. Reardon 

— — V. Teenery 

V. Turner 

V. Walker 

Hindmarsh v. Southgate 
Hindson v. Weatherill 
Hiralal v. Mt. Dhammo 
Hirbai v. Jan Mahomed 
Hirji V. Gordhan . 
Hitch V. Leworthy 
Hoari v. Osborne . 
Hoban, Re . 
Hobbs V. Wayet . 
Hobday v. Peters 
Hobson V. Bell 
^— — V, Trevor . 
Hodges, In re 
Hoghton V. Hoghton 



Page. 

. 285 

126, 186 
. 70 

234, 236 
89,90 
. 267 
. 147 
. 219 
. 280 

161, 275 
203, 205, 

210, 205 
. 149 
17, 289 
. 220 



. 109 
. 181 
. 319 
Afzul 

. 399 

142, 177 

216, 217 

. 44 

. 278 

172, 231 

. 34 

. 75 

. 220 

. 31 

. 189 

. 30 

. 228 

. 132 

. 117 

. 117 

. 49 

83, 107 

. 245 

37, 357, 366 

. 171 

. 222 

43, 189, 222 

230, 231 

. 23 

120, 248 

114, 120 



KXXVIII 



TABLE OP CASES 



Page. 
Holder, 2Je . . . .217 
Holder v. Durbin . . .291 
Holdsworth, Ex parte . . 278 
Holford V. Phippa . 179 275, 276 
Holgate V. Ha worth . .318 
. V. Jennings . . 155 

Holkar V. Dadabai . . 26 

Holland, B? . . . .63 
HoUingaworth v. Shakqshaft . 320 
HoUoway «, Millajd . . 62 

Holmes, Re . . . . 286 

V. Bring . . . 164 

V. Qoodston . . 32 

V. Moore . . . 272 

r V. Penny 40, 60, 62, 68, 157 

Holt p. Deiyell . . .286 

V- Sindrey ... 34 

Home V. Pringle . . . 209 
Honappa v. Narsappa . 102, 107 
Hood V. Clapham . . .185 

V. Oglander . . 39, 77 

Hooaein Ali v. Bhagavan . 313 

Hope, lie ... . 219 

V. Carnegie ... 30 

V. Harman ... 65 

V. Liddell . . .175 

Hopgood V. Parkin . .184 

Hopkins, iJe . , . 289 

Hopper V. Conyers . 85, 310 

Hora «. Hora ... 79 

Horde V. The Earl of Suffolk . 157 
Hori Dasi v. Secretary of State 

358, 359, 386, 387 
Horn V. Horn . . .236 
Horner, Be . . . .33 
Horton V. Brooklohurat . . 160 
Horwood V. West ... 76 
Hosegood V. Pedlar 217, 218, 221 
Hossainara v. Bahamanisaa . 228 
Hoaaein v. Bhagabun ' . . 383 
Hotohkeya, In re . . . 224 
Houghton, Ex parte . . 85 

V. Koenig . . 135 

Houae o. Lord Winterton . 219 

1). Way . . .153 

Hovey v. Blakeman 205, 206, 209 



Howard v. Chaffer 
Howard v. Papera 
Howaith, Be 
Howe V. 



Page. 

. 236 

, 295 

. 227 

Earl of Dartmouth 

143, 203 



V. Howe 

Howes V. Biahop . 
Howkina v. Howkins 
Howae v. Chapman 
Hoy V. Master . . 
Hoyes v. Kindersley 
Hubbard v. Young 
Hugg V. Greenway 
Hughes, Ex parte 

, Re . 

V. Empson 

V. Howard 

V. Stubbs . 

Huguenin y. Basley 



Hull V. Christian . 
Hulme V. Tenant . 
Humberston v. Humberston 
Hungerf ord v. Earle 
Hunsraj v. Runchordas . 
Hunter u. Atkins . 

V. Attorney-General 

V. A.-G. and Hood 

V. Bullock 

^ V. Young . 



. 85 
. 113 
187, 188 
. 358 
. 77 
. 93 
. 155 
. 206 
266, 296, 624 
. 63 
142, 177 
. 112 
52, 222, 287 
56, 113. 
115, 116, 118, 120 
. 255 



. 195 

. 21 

. 67 

. 26 

114, 117 

. 359 

. 18 

. 45 

. 186 

. 39 

. 229 

. 48 



Hunt-Poulaton v. Furber 
Hurly, Ex parte 
Hurpurshad v. Sheo Dyal 
Hurrosoondery v. Cowar 

Kiatonauth ... 38 
Hurruok Chund Sahoo v. Golam 

ShrufE . . . .402 
Hurry Doss Dutt v. Uppoor- 

nath Dosaee . . .150 
Hurry Svmker Mookerji v. 

Kali Coomar Mookerji . 105 

Hurst, Be . . 142, 143, 164 

v. Hurat . . 44, 180 

Hiisain v. Hafiz ... 59 

V. Muaahib . . 60 

Huasain Bibee v. Hussain Sheriff 400 



TABLE OF CASES 



XXXIX 



Hussein v. Bhagavan 
Huasein Bhai v. Haji Ismael 
Husenboy v. Ahmedboy 
Huseni v. CoUeotor of Mora 

dab'ad 
Hutoheaon v. Hammond 
Hylton V. Hylton . 



Page. 

383 

65 

37 

359 
226 
116 



284 



Ibbetson, Ex parte 
Ideal Bedding Co. v. Hol- 
land ... 58, 65 
Imambandi v. Kumlesvari 94, 

100, 102 
Imperial Land Co. of Mar- 
seilles, Re . . . ,260 
Imperial Merohantile Credit 

Association v. Coleman 260, 261 
Ingle V. Partridge , 146, 175, 241 

Inhabitants of Eltham v. 

Warreyn .... 366 
Innes, Be . . . .51 

J). Mitchell ... 30 

Irby V. Irby . . . 237, 280 
Irons V. Smallpieoe . . 51 

Irvine v. Sullivan ... 76 
Isaac, Re - . . ■ 247 
Isak V. Khatija ... 30 
Ishan Chund^r v. Bishen . 57 

Ishun Chunder j;.Biahu Sirdar 60 
Ishwar v. Dewar . 
— - V. Janki 

V. Ram Kani 

Ismael v. Hufiz 



Ismail V. Haiiz 
Ismail Khan v. Jaigun 
Isnat V. Kaniz 
lasur V. Gopal 
Izod V. Izod . 



61,65 
. 152 
. 383 
. 99 
99, 100, 114, 117 
. 196 
. 394 
. 104 
. 289 



Jackson v. Bowley 

— V. Dickinson . 

; — V. Hamilton 

V. Welsh 
Jackson and Haden's 

tract 
Jacubs V. Rylance 
Jadu Nath v. Rup Lai 



Page. 

63,64 
. 187 
. 254 
. Ill 
Con- 

. 231 

. 222 

17, 45, 83, 

103, 107 

104 

109 

379, 386 

23 

383 

23 

386 

383 

392 



Jadunath v. Srimati Premmoni 
Jaga Bandhu v. Srinath 
Jagadindra v. Hemanta 
Jagannadha v. Balasuiya 
Jagannath v. Bibi Rupa 

V. Dibbo 

V. Ran jit 

Jagarnath v. Bibi . 
Jagatmoni v. Romjani . 
Jaggut Mohini Dossee v. M. S. 

Sokhee Money Dossee . . 375 
Jagmohundas v. Pallonjeo . 196 
Jai Bansi v. Chattar . . 386 
Jaira v. Atmaram . . 26 
Jaladanki, Inre . . .60 
James, Ex parte 263, 265, 267, 269, 
270, 296 
James, Re 

V. Couchman 

V. Dean 

V. Freaiaon 



. 226 
. 70 
. Ill, 112 
124, 125, 137, 
140 
218, 219, 221 
. .36 
362, 363 
196 
Sona- 



Jaafar Mohiuddin Sahib v. Aji 

Mohiuddin Sahib 386, 387, 400 
Jackson, Re . 182, 197, 224, 284 



V. May 

Jamma Bai v. Dharsey 
Jamnabai v. Khimji 
Jamnadas v. Atmaram 
Jamsetji Jijibhai v. 

bhai .... 50 

Jamyatram Ramaohandra v. 

Prabudhas Hathi . . 60 
Janaiyan v.. Adoremoney . 384 

Janaki v. Narayanasami . 150 

Jangu V. Ahmad-Ullah . . 399 
Janki v. Biaheshar . . 59, 61 

Jan Mahomed v. Syed Nurudin 369 
Janmajay Mazumdar v. Keahab 181 
Janokee v, Gopaul . . 386 



TABLE OF CASES 



Page. 

Jared v. Clements . . . 299 
Jarman'a Estate, In re . 359 

Jarratt v. Aldam . . . 121 
Jarvis v. Chandler . . 30 

Jatindra Mohan Tagore 

Ganendra Mohan Tagore . 31, 
32, 38, 375, 386 
Javerbi v. Kablibai . . 38 
Jawahra v. Akbar 
Jeans v. Cooke 
Jeffrey v. De Vitre 
V. Jeffrey . ^ 



Jeffreys v. Jeffreys 

V. Marshall 

Jenkins v. Keymis . 

V. Milford 

V. Eobertson 



400 
93 
80 
67 

50, 51, 70 
160, 161, 219 
67 
275 
210 
283 
115 
64 
185, 222 
of 
21, 22 
. 228 
. 211 
. 135 
. 120 
V. Shah 
394, 396, 397 
152 



Jenkinson, Re 
Jenner v. Jenner . 
Jenkyn v. Vaughan 
Jarvis v. Wolferstan 
Jervoise v. The Duke 

Northumberland 

V. Silk . 

Jesse V. Bennett . 
Jesson, Be . 
Jevers v. Jevers 
Jewun Doss Sahoo 

Kubeer-ood-deen 
Jhandu v. Tariff . 
Jhula V. Kanta Prasad . . 152 
Jinatboo v. Sha Nagar Valab . 114 
Jitam V. Mt. Manbarta . . 97 
Jivandas Keshavji v. I^amji 

Nanabhai ... 48 

Jnananjan v. Adoremoney . 384 
Joakin v. Secretary of State 

for India .... 68 
Jobsone v. Palmer . . 144 
Joel V. Mills ... 74 
Jogeshwar v. Kunjiram . . 65 
Jogindra v. Hemontha . . 380 
John V. Dodwell & Co. . . 29 
Johnson, Re . . 44, 62 
- V. Johnson . 82, 152 
V. Kennett . 235, 236 



Johnson v. Kershaw 

■». Newton 

V. Prendergast 

■W.Telford 

Johnston v. Cox . 

V. Rowlands 

Jones V. Boulter . 

I). Farrell 

V. Foxall 



— V. Gibbons 

— V. Gieatwood 

— V. Higgins 
-- J). Jones 
--V. Lewis 

— V. Lock 



V. Powell 

V. Powles 

V. Williams 

Jordon v. Money 
Joshua i>. Alliance Bank 
Josselyn v. Josselyn 
Joy V. Campbell 



Page. 

. 74 

145, 146, 318 

318 

218 

286 

77 

68 

278 

170, 171, 

257, 318 

213, 283 

. 78 

141, 195 

. 55 

144, 145, 275 

. 52 

. 237 

. 300 

. 358 

. 196 

56, 57, 62 

. 277 

45, 209, 242, 

303 

Huro- 



Joy Deb Surmah 

putty Surmah . 
Juala V. Khuman . 
Judah t). Mirza Abdool 

Kurieem .... 
Juddo Nundun Burral v. Kalee 

Coomar Ghose . 
Jugalkishore v. Lakshmandas 

110, 186, 192, 363 
Jugatmoni v. Bomjani . . 366 
Juggernauth Doss v. Brijnath 

Doss .... 

Juggesur V. Rajah Roodro 

Narain .... 
Juggessur Buttooyal v. Rajah 

Roodro Narain Roy . 
Juggodumba Dosi v. Puddomoni 

Dosi. . . . 26,27 

Juggutmoheenee Dosee v. 

Sokheemonee Dosee . 12, 391 
Jugraj V. Kissan ... 60 
Jukes, Re . . . .60 



386 
196 

56 

398 



26 



384 



383 



TABLE OP CASES 



xli 



Page. 
Jumoona Daseya Chowdhrani ' 
V. Bama Soonderai Dassya 
Chowdhrani . . .151 



Kadir Ibrahim v. Arunaohel- 

1am 226 

Kadir Ibrahim v. Md. 

Rahumadulla , . . 392 
Kahandas, Inre . . .97 
Kaihur Singh v.. Roop Singh . 314 
Kailasam v. Nataraja . . 382 
Kalee Gir Gossain v. Bungshee 

Mohun Doss . . . 385 
Kalee Nath Kur v. Doyal 

Kristo Deb . . .106 

Kaleloola v. Nuseeruddin 359, 363 
Kaliammal v. Kolandavelu , 94 
Kali Baksh v. Ram Gopal . 109 
Kalicharan v. Rasik . . 107 

— D. Rouchi . .152 

Kali Sahu v. Kedar Mai . 100 

Kalis wara v. Nataraja . .110 
Kallu Mai V. Shamsuddin . 97 
Kally Doas Mitter v. Gobind 

Chunder Paul . . . 102 
Kally Proaono Mitter v. 

Gopee Nauth Kur . . 38 
Kamaraju v. Secretary of 

State . . . .193 

Kamavadhani Venkata Sub- 
bay ya V. Joysa Naraaingappa 151 
Kameswara v. Veeraoharlu . 313 
Kamini v. Promothonath . 383 
Kamta v. Indomoti . . 104 
Kamuruddeen v. Noor Maho- 
med .... 48 
Kanaran v. Kunjan . . 290 
Kanchana v. Bijnath . . 64 
Kandasami v. Akkammal . 162 

V. Murugappa . 124 

V. Somaskanda . 161 

Kaniz v. Wali UUah . 104, 105 
Kannan v. Nilakundan . . 385 
Kanti Chunder v. Kissori Mohun 62 



Page' 

Kanye Dass Byragee v. Ram- 

gopal Ghose ... 56 
Kapini Goundan v. Saranga- 

pani Goundan ... 68 
Karaga v. Devappa . . 383 
Karuppa v. Aromuga . . 35 
Kasheshurree Dassee v. 

Krishnakaminee Dasaee . 399 
Kasliinath v. Anant . ' 27, 30 
Kasiohetty v. Dev Sokomoni . 384 
Kasim v. Sudhindra . \ 382 
Kasim Saiba v. Sudhindra . 390 
Kathan Muthirian v. Siva- 

bhagiathammal . . 380 

Kathaperumal v. Secretary of 

State . . . .104 

Kattama Matohiar v. Dora- 

singa Tever . . . 152 
Kaye, Re . . . .135 

1). Powell . . .274 

Kazi Hassan v. Sagun 376, 380, 400 



Kearsley, Ex parte 

■ B. Woodcock 



Keating v. Keating 

Keats V. Hewer 

Kedainath v. Atul . 

Kekewioh v. Manning 

Kellaway v. Johnson 

Kellie v. Fraser 

Kelson V. Kelson ... 68 

Kennedy v. Daly . 80, 159, 299, 318 



293 
43 

174 
92 

363 
53,54 

164 
26 



— v.Be Trafiord 
— V. Earl of Cas'silis 



271 
30 

297 

195 
62,64 

233 
30 



Sein 



V. 



Kenney v. Browne 
Kent V. Jackson . 

V. Riley 

Keishaw, Ee 
Keshav v. Vinayak 
Keshub Chunder 

Vyasmonee Dossia 
Kessowji V. Hurjivan 
Keye v. Dane 

Khajeh Salim v. Abdul Khadir 
Kherodemoney Dossee «. 

Doorgamoney Dossee 38, 191 

Khettar v. Hari . . .383 



105 
118 
272 
399 



xlii 



TABLE OP CASES 



389 

101 

382 

. 102 

53, 212 

64, 267 

146, 243 

[264, 271 

. 14 

53, 56, 222 

266, 271 

. 82 

122, 276 

. 121 



Khuggender Narain Chow- 
dliury V. Sharupgir Oghore- 
nath .... 

Khunda v. Aziz 
Khusalohand v. Mahadevgiri . 
Khwaja v. Muhammad . 
Kiddill w. Farnell . 
'Kidney v. Coussmaker 
Kilbee v. Sneyd 
Killick V. Mexney 
Kilpin V. Kilpin . 
King, Be 

V. Anderson . 

V. Denison 

V. King 

V. Savery 

Kingdon v. Bridges . . 88 

V. Castleman . 189, 215 

Kinlook v. Secretary of State 

for India in Council . . 128 
Kiplin V. Kiplin ... 89 
Kirby v. Mash . . .293 
Kirby-Smith v. Parnell . . 84 
Kirkman v. Booth 250, 257, 261 

104 

101 

388 

196 

. 126 

. 23 

. 292 

22,76 

. 271 

182, 223 

. 222 

77, 170, 220 

260 

144 

375 

189 



Kirtibash v. Gopal 
Kishan v. Garudadhwaja 
Kishen v. Buageet 
Kissin Gopal v. Kali Proaonno 
KnatchbuU v. Fearnhead 
Knight V. Bowyer 

V. Eail of Plymouth . 

V. Knight . 

•^— — V. Majoribanka 
Knight's Trust, Se 
Knott, Se 

V. Cottee . 

Knowleas v. Soott . 
Knox V. MacKinnon 
Kolathu V. Eanga 
KoUaway u. Johnson 
Komlakant Ghosal v. 

Hurree Nund Grames 
Kondeti Kama Row 

Nukamma 



Kooer Golab 
Kurun Sing 



Sing V. 



Ram 
375, 378 

V. 

. 108 
Rao 
151, 152 



Koolayappa v. Balusami 
Koomar Doorganath Roy v. 

Ram Chunder Sen 
Koonjee Singh v. Jankea 

Singh .... 
Koonwar Dooganath Roy v. 

Ram Chunder Sen . 313, 



Page. 
59 



385 



105 



379, 383, 384, 385 



Krishna v. Rayappa 

• V. Subbauna 

V. Thambu 

Dey V. Bepin Behari 



48 
163 
317 
386 
317 



Krishnaji v. Vithal 

Krishna Kumar v. Joy 

Krishna . . . 60,62 

Krishnamacharlu v. Ranga 

Charlu . . . 240,242 
Krishnan v. Veloo . . 242 

Krishnaramani Dasi v. 

Ananda Krishna Bose 38, 375 

Krishna Ramaya v. Vasudev . 312 
Krishnaaami, Re . . . 314 

V. Kodandarama 391 

«. Makay. . 386 

Kristoromoney v. Naiendra . 33 
Kulada v. Kalidas . . 379 

Kulb Ali Hossein v. Suf Ali 393, 397 
Kuloda Prasad v. Kalidas . 381 
Kullar Singh v. Modhoo Dyal 

Singh . . . .313 

Kumara v. Srinivasa . . 99 
Kumara Asima Krishna Deb 

V. Kumara Kumara Krishna 

Deb . 7, 10, 37, 38, 375 

Kumarasami v. Subbaroya 12,76,380 



Kumbabinga v. Ariaputra 
Kungunneri v. Nilakunden 
Kunhammed v. Narayanan 
Kunigaratu v. Arrangaden 
Kunjamani v. Nikunja Behari 
Kuppa V. Dorasami 
Kupparaju Venkatasubbrah 
V. Murugula Sheik Silar 
Sahib . . . . 
Kuppu Konan v. Thirugnana 
Sambanda 



101 
242 
196 
163 
386 
385 



380 



TABLE OF OASES 



xliii 



Labo V. Brito . . . 107 

Lacey, Ex parte 258, 263, 264, 

265, 268, 296 
Ladkabai v. Navivahu . 
Lady Arundel v. Phillippa 
Lady Bateman v. Faber 
Ladywell Mining Co. 

Brookes 
Lahar Puri v. Puran 
Laing'a Settlement, Be . 
Lake v. Do Lambert 
Lakhmi Chand v. Joy Kuvarboi 

199, 206, 209, 213, 243 
Lakshmana v. Bangamma . 385 
easami . 211 



. 


49 




68 




277 


V. 




, 


261 


389 


390 


164 


272 


, 


135 



Lakshmandas v. Ganpatrao 369, 400 
Lakahmi v. Vaijnath . . 363 
Lakshmibai, Be . . . 383 
Lakahmi Doas v. Boop Lai 80, 115, 

121 
Lakahmishankar v. Vaijnath . .377 
Lala Amarnath v, Aohan Kuar 312 
Laliteswar v. Eameswar . 23 

Lalit Mohan v. Ohukkan 37, 38, 130 
Lalla Bunaeedhur v. Kunwar . 313 
Lallubhai Bapubhai v. Manku- 

varbai ... 82, 84 

Lalmoney Dosaee v. Judoonath 



Shaw 
Lai Singh v. Deo Narain 
Lambe v. Eamea . 

V. Orton 

•Lambert v. Lambert 
Lamplugh v. Lamplugh 
Lander v. Weaton . 
Land Mortgage Bank v. Sudu- 

rudeen .... 
Lands Allotment Company, Be 
Lane v. Debenham 

*. Dighton 85, 86, 303 

— — V. Fox .... 65 
Langford v. Gasooyne 204, 209, 241 
V. Gowland . . 365 



. 26 
313, 316 
. 80 
50, 53. 181 
. 149 
92, 132 
. 171 



26 
260 
174 



Langley v. Fisher . 
Langmeade'a Trusts, Be 
LangstaflEe v. Fenwiok . 
Langston v. OUivant 
Latifunisaa v. Majidunissa 
Lavender v. Blaokston . 
Law V. Law . 
Lawless v. Shaw . 
Lawender v. Stanton 
Lawrence v. Bowie 

— V. Maggs 

Laxmi Bai v. Keahav Annaji 
Layton Policy, Be 
Leaky v. De Moleyns 
Lear v. Leggett 
Learoyd v. Whiteley 

Leohmere v. La vie . 
Lee V. Hewlett 
V. Sankey 

V. Young 

Leedham v. Chawner 



■ V. Patohett 



Page, 

159 

235 

250 

165 

397 

66 

109,260, 271 

78 

236 

212 

112 

94,99 

220 

126 

43 

144, 163, 

209, 241 
76, 77 
. ■ . .287 
190, 192, 220, 

246, 310 
157, 248, 291 
217, 218, 

220, 221 
. 173 



Leeds and Hanley Theatre of 
Varieties, Be . . . 

Lees V. Sanderson . 

Leif child's case 

Lenian v. Spillett . . 

Le Marchant v. Le Marohant . 

Lemprieie v. Lange 

Lenoh v. Lenoh 

Lepine, Be . 

V. Bean 

Leslie v. Baillie 

, V. The Land Mortgage 

Bank . . . . 

Letterstedt v. Broera 

Lever, Be . 

Lewes v. Lewes 

Lewia, Ex parte 

V. Madocks 

V. Matthews 

V. Nobba 

V. Bees 



261 

209 

68 

88 

76 

132 

301 

226 

34 

180 



. 26 
. 291 
. 246 
. 42 
. 230 
. 302, 303 
. 137 
80, 145, 209, 216 
. 70 



xliv 



TABLE OF OASES 



Page. 

Liddard v. Liddard . 75, 76 
Life Association of Scotland 
V. Siddi . 110, 186, 192, 197, 198, 
225, 310 
Lightwood's Trusts, Re 
Liles V. Teriy 
Limji V. Bapuji 
Lincoln v. Windsor 
V. Wiight 49, 



Lingard v. Bromley 
Linsley, Re 
Lichfield v. Baker 
Lister v. Hodgson . 

V. Lister 

V. Pickford . 

V. Stubbes . 

& Co V. Stubbs 



. 135 
. 120 
. 35 
. 251 

87, 208, 222 

. 211 

. 140 

. 152 

. 70 

264, 297 

. 192 

, 246 

109, 246 

. 180 

184, 221 

. 287 

. 218 

. 261 

198, 285 

45,83 

86,88 

86,93 

81,82 

. 37 

. 282 



Livesay ii. O'Hara 

V. Livesey 

Livessey v. Harding 
Llewellin, Re 
Lloyd, Re 
V. Attwood 

V. Llyod 

V. Pughe 

— ^ V. Bead 

V. Spillett . 

V. Webb 

Lloyd's Bank v. Pearson 
Local Agents of Zillah Hooghly 

V. Krishnanund Dundee . 388 
Lockhart v. Reilly . 140, 210 

Lockwood V. Sikes ... 44 
Lockyer v. Savage . . 42 

Lodna Colliery Co. v. Bepin . 26 
Lofthouse, iJe . . .228 
Lokhee Narain Roy Chow- 

dhry v. Kalypuddo Bando- 

padhya . . . 94,100 
Loki V. Aghoree . . . 317 
London Commercial Bank c. 

Reliance Building Society . 300 
London's Trusts, In re . . 41 
Long V. Hay . . . 188 

Longbottom «. Sattoor , 362, 364 
Longley v. Longley . , 83 



Page. 

Longmore v. Elcura . . 79 
Lord V. Bum ... 40 

V. Godfiey . . . 155 

Lord and Fullerton, Re . 125, 136 
Lord Ardglasse v. Musohamp . 28 
Lord Churston v. Buller . . 80 
Lord Cornbury v. Middleton . 278 
Lord Cranstown v. Johnston . 29 
Lord Deerhurst v. Duke of 

St. Albans ... 22 

Lord Dorchester v. The Earl 

of Effingham ... 22 
Lord Hardwicke v. Vernon 296, 297 
Lord Kildare v. Eustace . 28 

Lord Montford v. Lord Cado- 

gan . 123, 126, 187, 194 

Lord Pomfret v. Lord Windsor 159 
Lord Portarlington v. 

Soulby .... 30 
Lord Provost, etc., of 

Edinburgh v. The Lord 

Advocate . . • 258 

Lord Ranelagh's Will, Re . Ill 
Lord Shipbrook v. Lord Hin- 

chinbrook . 204, 205, 210 



Lorenz's Settlement, Re 
Los combe v. Wintringham 
Louis Kunha v. Coelho 
Lovfit V. Praser 
Loveland, Re 
Loveridge v. Cooper 
Low V. Boureerie . 

V. Carter 

Lowe V. Shields 
Lowes Settlement, Re 
Lowis V. Rumney . 
Lowry v. Fulton 

Lowson V. Copeland 



. 224 
. 358 
48,49 
. 218 
33 
. 282 
. 279 
. 90 
. 243 
283, 286 
. 228 
125, 136, 
137, 240 
141, 142, 
143, 223, 319 
Luohmun Dass v. Giridhur 

Chowdhry . . .317 

Luohmi Dai Koori v. Asmaif 

Singh . . . .316 
Luokhee Narain Chuoker- 
butty V. Tara MoneeDoasee 106 



TABLE OF OASES 



Xl7 



Page. 

Luddy's Trustee v. Peard 263, 268 
Luff V. Lowd . . , 269 

Luke V. South Kensington 



Hotel Company 


. 246 


Lunham v. Blundell 


. 146 


Lush V. Wilkinson 


62,64 


Luteefun v. Bego Jan 


. 310 


Lutifunissa v. Nuziiun . 


. 400 


Luther v. Bianconi 


143, 189 


Lyell V, Kennedy . 


126, 186 


L3?noh V. Clarkin 


. 85 


Lynn v. Beaver 


. 182 


Lyon V. Baker 


. 251 


V. Home 


. 115 


Lyster v. Burroughs 


. 80 



M 

Mabbett, Be ... 38 

Maberly v. Turton . 233, 288 

Macartney v. Blackwood . 296 

Macdonald, Re . . . 247 
Maodonald v. Irvine . . 155 

V. Macdonald . 262 

Macduff V. MacdufiE . . 36 

Macey v. Shumer ... 76 
Maohet's Will, Be . . . 224 
Mack V. Postle . 180, 282, 287 
Mackie v. Maokie . . . 155 
Mackett v. Mackett . . 80 
Mackintosh v. Nobinmoney 

. 251, 258 
44, 59 



Mackreth v. Symmons . 298, 299 

Maoleod v. Jones . . . 258 

V. Sorabji . . .227 

V. Buchanan . . 287 

V. Kikabhoy . . 283 

Macnab v. Whitbread . . 76 

Macnamara v. Jones . 216, 255 
Madan Gopal v. Sati Prasad. 313 
Madary v. Goburdhun Hulwai 391 

Maddison v. Andrew . . 248 

Maddocks v. Wren . . 109 

Madhab v. Sarat . . 381, 386 

Madho Dass v. Kamta Das . 390 



Madhusudan v. Radhika 
Madonji v. Tribhowan . 
Maghar Singh v.R. 
Magrath v. Morehead 
Mahabir v. Macnaghten 



Page. 
. 382 
. 48 
. 130 
. 277 
264 



Mahadeva v. Sankarasubrama- 

nya . . . . 50, 55 

Mahaditta v. Mrs. Nicholson . 99 
Mahakore v. Bai Mangla . 48 

Mahamad Gaus v. Rajabaksha 384 
Mahamad-unissa v. Bachelor . 60 
Mahamaya v. Haridas 381, 385, 386 
Mahammad v. Ahmed . . 370 

V. Sadiq . , 48 

Mahant Ramji Dasa v. Laoohu 

Das . . . 388, 389, 390 
Maharaj Singh v. Maulvi Wall 117 
Maharanee Brojosoondery 

Debia v. Ranse Luohmee 

Koonwaree . . . 379 
Maharanee Shibessouree v. 

Mothooranath . . . 334 
Mahendra v. Kali Proshad . 104 
Mahim Chandra v. Hara Kumari 379 
Mahmood v. Rodrigues 199, 201, 210 
Mahomed v. Ganapati . . 382 

V. Kjishnan . .152 

V. Ramjam . . 291 

Mahomed Abdula v. Gulam 

Hussain .... 291 
Mahomed Ahmed v. Pedro . 206 
Mahomed Ashamulla v. Amar- 

chand . . 393, 394, 397 
Mahomed Buksh v. Hosseni 

Bibi .... 114 

Mahomed Ghousa v. Sheik 

Moideen .... 399 
Mahomed HafizuUah v. Chith- 

rukhan .... 85 
Mahomed Hamidula Khan 

V. Lotful Huq . . . 395 

Mahomed Ibrahim v. Abdul 

Latifi . . . 192, 393 
Mahomed Kadir v. Ghul'am 

Mahomed Ali . . . 399 
Mahon v. Savage . . . 158 



xlvi 



TABLE OF CASES 



Page. 

Mahram Das v. Ajudhia . 38 
Mahtab Chand V. Mirdad'^Ali . 381 

Mahzar Ali v. Budh Singh . 181 

Maitland v. Bateman . . 143 

Mckay's Case, Re . . 261 

Makundi v. Sarabsukh . . 313 
Malohus V. Broughton . 358, 364 

Maloqlm v. O'Callaghan . 217 

Malin 1). Keighley . . 76,289 



Mallot V. Wilson 



50, 51, 55, 65 



Malukohand v. Manilal . 60 

Malzy V. Edge . . . 124 
Mame v. Masaw ... 60 
Mamian v. Agniharman . . 242 
Mamma v. Mamma . . 92 

Mamming v. Gill . . .17 
Ma Myun v. Maung Ba Tha . 64 
Manohaiam v. Pransankar . 385 
Manoharji Sorabji v. Kongseoo 

102, 103, 298. 299 
Manohershaw v. Ardeshir . 49 
Mandaya «. Ma E . . 107 

Mangles v. Dixon . . . 280 
Maniokyam v. Ramaliga . 23 

Manijan v. Khader Hussein . 320 
Manikapalli Bamayya i). 

China Ramayya . . 60 

Maniram v. Ganesh . . 108 
Manmatha v. Rohilli . . 150 
Manning v. Gill . 45,56,83 

Manningf ord v, Toleman . 302 

Mannu Singh v. Umadat Pandi 115 
Manohar Ganeah v. Lakmi- 

ram . 48, 373, 375, 376 

Manorama v. Kali Charan . 358 
Mansell v. Mansell 189, 298, 300 

Mansfield v. Shaw, 3 Madd 100, 295 
Manson v. Baillie . . . 239 
Mapp V. Eloook . . 81, 84 

Mara v. Browne 110, 165,188, 

190, 192, 216, 222 
126 
61 
83 
64 
51 



March v. Russell . 
Mardan Singh v. Korvnug 
Mariott v. Turner 
Markay v. Douglas 
Marler v. Tommas 



Page, 

Marquis Camden v. Murray 157, 158 
Marquis of Anglesey, Be . 287 

Marriott v. Kinnersley . . 189 
Marsden v. Kent . . 142, 179 
Marsh «. Attorney-General . 363 
Marshall «. Sladden . . 189 
Marten v. Roche . . . 306 
Martin v. Margham . . 44 

V. Persse . . . 137 

V. Sedgwick . 285, 286 

Martindale v. Booth . . 58 
Martinson v. Gloves . . 266 
Maskelyne & Cooto v. Smith . 60 
Mason's Orphanage, Re . 374 

Massey v. Banner . . 144, 242 
Mata Prasad v. Ram Charan . 105 
Mathews v. Brise . . . 145 
Mathewson i). Ram Kanai . 37 
Mathias v. Mathias . 301, 302 

Mathie v. Edwards . .172 

Mathuradaa v. Vandravandas 

81, 191, 192 
Mathura Naikin v. Bsu IQ'aikin 44 
Matigara Coal Co. v. Shragers, 

Ld 26 

Matthew v. Hanbury . . 45 

Matthison v. Clarke 250, 257, 261 
Ma Tun v. Ma Waing . . 104 
Maunder v. Lloyd ... 27 
Maung Kya v. V. P. L. V. N. 

Firm . . . .102 

Maung Tun v. Maung Lekhrani 60 
Maung Tun Tha v. Leong 60, 61 

Maw V. Pearson . . 112, 246 
Mawjibai v. Muljibai . .157 
Mayandi v. Chokkalingam . 384 
Mayer v. Murray . . 193, 194 

Mayhew v. Sarah . . . 128 
Mayor of Colchester v. 

Lowten 128 

Mayor of Coventry v. The 

Attorney-General . . 289 
Mayor of Gloucester v. Wood . 361 
Mayor of Lyons v. The Ad- 
vocate-General of Bengal 362, 

363, 391 



TABLE OF OASES 



xlv 



Page. 

Mayor of Lyons v. The East 
India Co. 129, 131, 136, 

355 
Mazhar v. Abdul Hadi . 392, 395 
M' Ardle v. Gauglian 112, 189, 310 
M'CuUooh V. Bland . . 61 

77 

78 

161 

69 

218 



MoCullooh V. MoCullooh 
MoCormiok v. Grogan 
M'Donell v. White 
M'Bonnell v. Hesitrig 
M'Bvan v. Crombie 
M'Fadden v. Jenkyna 



M'Kenna v. Eager 
M'Phee's Trustees v. 



13, 48, 
53, 249, 293 
. 125 
M'Phee. 359 



M' Queen v. Farquhar . . 174 
MoPherson v. Watt . . 266 
WTmk, Ex parte . . .285 
Mead v. Lord Orrery . 298, 299 
Meaghan, Inre . . .44 
Medworth v. Pope . . 34 

Meek v. Kettlewell . 51, 53 

Meei Jangoo v. Chote . . 98 
Meer Mahomed v. Shashi- 

ohunder . . . . 393 
Meeyappa Chetty «. Maung 

BaBu . . . .97 
Meggison v. Moore . . 76 

Meghu V. Bam Khelawan . 152 
Megji Hansraj v. Bamji Joita 

282, 285 
Megaon v. Hindle ... 33 
Meinertzhagen v. Davis . .132 
Mendes v. Guedella . . 145 
Merbao w. Perozbai . . 76 
Mercer, Bz patte ... 62 
Mercer, Re . . .64 
Meredith ». Heneage . 76, 77 
Meriette Be . . 284, 358 
Merlin v. Blagrave. . 182, 223 
Merry v. Pownall . . . 217 
Martins v. JoUifEe . . 300 
Measeena v. Carr . . . 246 
Messenger v. Andrew . . 77 
Metcalfe, Re . . 120, 122 
V. Metcalfe . . 42 



Metcalfe v. Pulvertoft 
Meux ». Bell 
Mioklethwaiie v. M. 
Middleton v. Dodswell 

V. Pollock 

V. Reay. 

V. Spioer 

Midgley v. Crowther 

V. Midgley 

Midland Bank v. Chambers 
Mildmay's case . . 
Miles V. Drunford . 
Miles V- Harford . 

V, Harrison . 

Millard v. Eyre 
Milligan v. Mitchejl 
Mills V. Farmer 

V, Fox 

V, Mills 

— <— V, Osborne 
Milroy v. Lord 
Mina Kumari v. 
Minet v. Leman 
Minors v. Battison. 
Mir Mahomed v. Kiahori 
Mir Nur Ali v. Majidah . 
Mitohplson v. Piper 
Mitf ord V. Reynolds 
Mithibai v. Limji . 
Mithomal Dwarkadas, In re 
Mitta Kunth Audhioarry 

Neeranjun Audhioarry 
Miyaji v. Sheik Ahmed 



Page- 

. 65 

215, 282, 285 

149 

226 

14 

293 

256 

153 

190, 229, 246 

. 74 

. 68 

17,45 

. 19 

. 222 

. 290 

229, 294 

. 361, 362 

. 196 

. 155, 164 

. 142. 165 

. 50, 52, 53 

Bijoy Singh . 60 

. 157 



. 237 

. 102 

. 392 

. 237 
46. 358 

. 131 

. 66 



289, 



387 
290, 
291 
. 370 
. 224 
. 329 
287, 362 



Miya Vali v. Sayed Bava 
Mockett's Will, Be. 
MofEazal v. Mohammed . 
Moggridge o. Thaokwell 
Mohabeer Kooer v. Joobha 

Singh . . . .313 
Moha Singh v. Het Singh . 375 

Mohamed Ibrahim v. Ahmed . 399 
Mohammad Haflzullah v. 

Satrukhan . . .196 

Mohammad^ Hamid v. Sita 

Ram .... 394 



xlviii 



TABLE OF CASES 



Page. 



Mohammad Hashim v. 


Sadiq 




Huaain 


49, 68 


Mohan v. Madhuaudan 


, 


386 


V. Tikau . 




381 



Mohan Lai v. Balmokund 61, 63, 64 
Mohan Lalji v. Gordhan Lalji 

. 385,387 
Mohesh Lall v. Baaanta 

maree 
Moheshpur Coal Co. v. 

Jotindia Nath . 
Mohin V. Anil 
Mohiuddin v. Sayiduddin 
Mohun Das3, In re 
Mohunt Gopal Daaa v. Mohunt 

Kerpara Daaa 
Mohunt Rumun Daaa «. Mohunt 

Aahbul Daaa 
Moji lal «. Gaurishankar. 
Mokund Lai v. Chotay Lai 
Momappa v. Surappa 
Monckton v. Braddell . 
Moneypenny v. Dering . 
Monteflore v. Beheena 

V. Brown 

0. Enthoven . 

V. Guedella . 



Ku- 
228 229 

117 
109 
400 
391 



389 



Montogomery v. Johnaon 
Montmorency v. Devereux 
Moohummud Sadik ». 
hummud Ali 



. 389 

. 192 

. 196 

. 101 

. 181 

. 35 

. 44 

. 71 

. 43 

. 287 

124, 137 

. 267 
Moo- 

392, 399 



Mookerjee v. Mookerjee 
Moona v. De Bernalea 
Moonshee Buzzul Ruhim 
Shumaheroonniaaa Begum 



266 268 
. 187 

V. 

12, 99, 

• i 186 

Moonahee Golam Ali v. M. S. 

Sowlutoonisaa Bibee . . 399 
Moore, Re . . . .77 

V. Crofton ... 67 

V. Darton . . 50, 54 

V. Trowd . 249, 251, 254 

V. Knight ' . . .188 

V. Mo Glyn . 220, 290 

V. Moore ... 52 

■ V, Pranoe . . . 117 



, Page. 
Moore, v. Somerset . . 357 

Mooreoroft v. Dowding . . 240 
Mooshabhai v. Yakoobbhai . 192 
Morerjis;. Neubai . .362,366 
Morewood v. South Yorkshire 

Railway Company 
Morgan, Re . 

V. Morgan 

V. Stephens 



Morison v. Morison 
Morley v. Loughnan 

V. Morley 

Moroney, Re 
Morret v. Paske 
Morria v. Cannan 

■». Livie 

Moriison v. Morriaon 
Morae v. Royal 

Mortimer v. Davies 
V. Ireland 



65 

111 

155 

189 

252 

56, 70, 113 

144 

61 

260 

282 

280 

217, 220 

263, 264, 267, 

268, 269 

. 86 

. 245 

. 172, 173 

. 246 



Mortlook V. BuUer 
Morton and Hallet, Re 
Morvah Mining Co. Re 
Moseley v. Ward . 
Moses V. Levi 
Motee Dossee v 

Soodan 
Motilal V. Uttam . 
Mouat, Re . 
Moulvee AbdooUa 

Rajeari Dossea 
Moulvee AbdooUah v. Ramzoo 

Dye ... 397,398 

Moulvie Sayyud Uzher Ali v. 

Muasummat Bebee Ultaf 



261 
. 171 
. 209 
Modhoo 
. 173, 384 
58, 61 
62, 65 
S. 
. 397 



0. M. 



Fatima 
Moyle V. Moyle 
Moxham v. Grant . 
Muokleston v. Brown 
Muoklow V. Fuller . 123, 124, 208 
Muddun Gopal Lall v. M. S. 

Gowrunbutty . . . 314 
Muddun Thakoor v. Kantoo Lall 316 
MufEet, Re . . . .219 
Muggeridge's Trusts, Re 43, 224 



95,97 

136, 146 

. 194 

. 45 



TABLE OF CASES 



xUs 



Page. 
Muhammad v. Bande Ali . 181 

V. Radha Ram . 161 

Muhammad Ahsan v. Umai- 

daraz .... 394 
Muhammad Aziz-ud-din , v. 

Legal Remembrancer . 400 

Muhammad Ibrahim v. Ahmad 

Said . . . .399 

Muhammad Imam v. Sardar . 94 
Muhammad Jafar v. Muham- 
mad Ibrahim . . . 290 
Muhammad Kasim v. Muham- 
mad Alum KiyamuddeMi . 401 
Muhammad Munavar v. Ras- 

alan Bibee . . . 393 

Muhammad Muntaz v. Zubaida 392 
Muhammad Nasim v. Muham- 
mad Ahmad . . . 131 
Mujibunissa v. Abdur Rahim . 393 
Mulhallen v. Maium . . 109 
Mulhar v. Narasimha . . 370 
MuUa Kasim v. MuUa Abdul 

Rahim . . . .181 
Mulvany «. Dillon . 109,111, 

112, 271 
Mumma v. Mumma . .132 
Munasami v. Subboroyar 45, 83, 107 
Munch V. Cookerell . 189, 195 

Munna v. Vinayak . .116 

Munshi Basiruddin v. Mahomed 104 
Munster Bank, Be . . 221 

Murari v. Adha Bhai . .115 
Murigaya v. Hayat Saheb . 397 
Murless v. Franklin . 88, 92, 93 
Murlidhar v. Diwan Chand . 380 
Murphy, In re . . .44 

V. O'Shen . 267, 271 

Murray, Re . . . 66, 309 

V. Palmer . . .267 

V. Pinkett . . 286 

Murugappa v. Rangasami . 383 
Murugesam v. Maniokavasaka. 384 
Musadee Mahomed Cazum 
Sherazee v. Meerza Ally 
Mahomed Shoostry . . 105 
Miissoorie Bank v. Raynor 76, 78 
A,LT. 



Page. 
Muaat. Ahmadi v. Raja Udit 

Narain .... 60 
Musst. Ameerun v. M. S. 

Hyatun .... 310 
Musst. Beebee Nyamul v. Puzl 

Hosaein .... 94 
Musst. Bilas v. Dasraj . . 97 
Musst. Buhuns Kowar v. 

Lalla Buhoree Lall . 100, 101 
Musst. Bukshun v. M. S. 

Doolhin . *. . . 313 
Musst. Champro v. Shanker . 61 
Musst. Hoymobutty v. 

Sreekishen . . . 100 

Musst. Hyatee Khanum v. 

M. S. Koolsum Khanum 392, 400 
Musst. Inderbuttee v. Shaikh . 98 
Musst. Janki v. Thakur Prasad 58 
Musst. Janki Bai v. Najaf Khan 99 
Musst. Kishnee V. Khealee Ram 150 
Musst. Kooldeep Kooer v. 

Runjeet Singh . . . 316 

Musst. Kripomoyee v. Geris- 

ohunder .... 100 
Musst. Kudeerun v. Mt. Lallum 100 
Musst. Lodhoomoona Dassee 

V. Gunesh Chunder Dutt . 151 
Musst. Maharani v. Nand Lai 

Misser . . . .151 
Musst. Mannia v. Jivan Das . 381 
Musst. Mukundi v. Bulaki . 60 
Muast. Nowruttum Koer v. 

Baboo . . . .312 
Musst. Parbati v. Naunihal . 163 
Musst. Qadira v. Shah Kubeer- 

oo-deen Ahmud . . 396, 397 
Musst. Bookho v. Madho Daas 48 
Musst. Sham Soondur Kooer 

V. M. S. Jumna Kooer , 316 
Musst. Shurfoonissa v. M. Si 

Koolsum . . . .393 
Musst. Suraj Bansi Kunwar v. 

Mahipat Singh . . . 151 
Muast. Thakro v. Gangapershad 94 
Musst. Thukrain Sookraj 
Koowar v. The Government 10a 
d 



TABLE OF OASES 



Muthoora Koonwaree v. 

Bootun Singh . . .313 
Huthu V. Shanmugatha . . 380 
Muthu Kana v. Vada Levvai 392, 395 
Muthu Krishna v. Muthu 

Krishna . . . .313 
Muthukumara, Be . . 104 

JMuthur V. Narayana . . 149 

JMuthusami v. Solai Konan . 98 
Muthusami Iyer v. Sree Sree- 

methanithi . . . 382 

Muthuvaiyan v. Sinnasami- 

vaiyan . . . „ 101 
JMuthuvelu V. Aiyasami . . 384 
Hutton V. Peal . .135, 309 
Muttyjan v. Ahmed . . 318 
Muzhurool Huq v. Pubraj 

Ditary Mohapattur . 394, 397 
Myler V. Fitzpatrick 112, 189, 

220,'246 

N 

Nabob Amiruddaula Muham- 
mad V. Nateri Srinivasa 
Charlu .... 38 
INafar Chandra v. Ratan 

Mala .... 36 

JSTagendra Nandini v. Benoy 

Krishna .... 375 
Nagimbai v. AbduUa . 95, 97 

Naikramlal v. Soorujbuns ! 
Sahee . . . .152 

Nakori v. Sarup Chunder . 101 
Nallayappa v. Ambalawana . 382 
Nalum V. Krishn^jsami . . 26 
Namaasivayam v. Nellayappa 80 
Nanalal v. Harlochan . 192, 359 
Nand Kishore «. Ahmed. . 104 
Nanney v. Williams 56, 69, 113 

Naoi'oji V. Rogers ... 14 
Narain v. Aukhoy . . 173 

Narasaya v. Venkatramanna 382, 

384 

Jfaraaimha v. Ayyanchetti . 363 

V. Gopala . 383, 384 



Page. 
Narasimha v. Venkayamma 52, 55 
Narasimulu v. Golam Hiissain. 124 
Narayan v. Nathaji . .163 

V. Raoji . . .102 

«. Shajani . . 256 

Narayana v. Ranga . 385, 388 

V. Viraraghava 60, 61 

Narayanasami v. Kumarasami 242 
Nareiidra Nath v. Atul Chandra 246 
Narki v. Lai Sahu . . . 181 
Narmal Das v. Chet Ram . 59 
Nairondaa v. Narrondas . 191 

Narayan v. Chintaman . . 383 
Nash V. Smith ... 84 
Nasimuniasa v, Abdul Kadir . 68 
Nasiruddin v. Ballabh Das . 396 
Natal Investment Co., Be . 280 
Natall V. Natall . . .128 

Natesa v. Ganapati 290, 291, 380 
Natha v. Maganohand . 57, 62 

National Trustees Company of 
Australasia v. General 
Finance Company of Aus- 
tralasia 
Navroji v. Dastur . 
Nawab Ibrahim v. Ummatul 



184 
370 
94, 
100 



Nawab Nurjad 

Mahumdee 
Naylor v. Arnitt 
— — V. Winch 
Neale v. Davis 
V. 



Ally 



. 359 
. 226 
. 265, 271 
. 159 
. 64 

Needham, Re . . . 123 
Neelayatakshiammal v. Taluq 

Board of Mayavaram. 146, 320 
Nelson v. Stocker . . . 184 
Nepean v. Doe . . .181 
Nerad Mohini v. Shibadas . 383 
Nelson v. Duncombe . . 227 
Neabitt ■;;. Tredenniok . . 112 
Nether Stowey Vicarage, 

In re . . . . 224 

Nethiri Menon v. Gopalan Nair 246 
New V. Bonaker . . . 365 



■ V. Joes 



251, 255 



TABLE OF CASES 



u 



Page. 
New & Co.'s Trustee v. Hunting 

52, 73 
New Fleming Spinning and 

Weaving Company, Ltd. v. 

Kessowji Naik . . . 187 
New, Prance and Garrards v. 

Hunting . . . .14 

Newill V. Newill ... 80 
Newland v. The Attorney- 
General .... 358 
Newman v. Newman . 283, 286 
Newport v. Bury . . . 252 
New Sombrero Phosphate Co. 

V. Erlanger . . . 261 
Newsome v. Flowers . . 159 
Newton v. Askew . . 55, 161 

0. Newton . . 286 

Niamat v. Ali Baza . 110, 370 
Nicholson v. Tutin . 71, 250 

V. Wordsworth . 137 

Nickisson v. Cockell . . 158 
Nidhee Singh v. Bissonath 

Dass . . . .102 

Nightingale v. Goulbuin . 358 

Nilakandan v.Sankaran . 290 

Nilam Tirupatiroyadu v. 

Vinjamuri Lakshminara- 

samma .... 186 
Nimai Chand v. Golam Hosaein 397 
Nirmul v. Mahomed . . 99 
Nitai Charan Pyne v. Sm. 

Ganga Dasi ... 38 
Uitya Gopal v. Mani Chandra 384 
Nizamuddin v. Abdul Gafur 359, 392 
Nobin Chunder v. Dokhobala 95, 97 
Noble V. Brett . . .185 

V. Meymott . . 137 

Nogendra Chunder Ghose v. 

Greender Chunder Ghoae 85, 303 
Norcutt V. Dodd . . 57, 58 

Noris. V. Wright . . . 171 
Norrington, Se . 142, 179, 186 
Norris, Ex parte . . 126, 182 

V. Chambres . 29, 30 

North, iJe . . . .226 
V. Gurney . . . 284 



Page. 
North British Insurance Co. v. 

Hallett . . . .284 
Northen v. Carnegie . 81, 84 

Norton t). Relly . . .116 
Norway v. Norway . .137 

Nottidge V. Prince . . 115 

Nowab Azimut Ali Khan v. 

Hurdwaree Mull . . 99 

Nund Kishore v. Ahmad . 105 

■ V. Kanee . 23 

V. Kaneram . 23 

Nundlal Baboo v. Bolake 

Bebee . . 149, 150 151 
Nundun Lai v. Tayler . . 102 
Nunn V. Wilson ... 56 
Nur Mahomed v. Bhagwandas 396 



Nuthoo Lall 
Pershad . 
Nutt V. Easton 



V. Buddree 



117 
271 



Oakes v. Strachey 


. 


152 


Oatway, Re . 


, 


309 


Obhoy Churn Ghuttuok 


V. 




Treelochun Chatterjee 


. 


106 


Obhoy Churn Mookerjee 


V. 




Punchanun Bose 




95 


O'Brien v. O'Brien 


. 


171 


Oceanic Steam Navigation 




Company v. Sutherberry 


173 


174 


O'Connor v. Haslam 


. 


74 


Official Assignee v. Brij 






Kishore . 


, 


66 


Oglander v. Oglander 


, 


291 


Ogle, Ex parte 


141 


228 


O'Herlihy v. Hedges 


, 


256 


Oldham v. Hand . 


, 


117 






42 
,297 


Oliver v. Court 172, 173, 


175 


V. King 


. 


65 


Ommaney v. Butcher 


, 


359 


Oowair v. Melborne 


, 


357 


Opera, Ltd., Re 




185 


Ord V. Noel . 


172 


,230 


O'Reilly v. Alderson 


. 


289 



}u 



TABLE OP CASES 



Orlebor, Re . 
Ormsby, Re 
Orr V. Newton 
Ottley V. Browne 
V. Gilbey 



Page. 

. 222 

216, 249, 280 

. 124, 143 

. 45 

. 161, 278 



Ouchterloneyi;. Ouohterloney . 227 
Overton v. Banister . . 184 
Owen V. Williama . . .112 



Paddon «. Richardson • 137, 164 
Padmanabha v. Willianxa . 275 
Page V. Cooper . . .173 

V. Home . . . 117 

V. Leapingwell . 83, 84 

Palairet v. Carew . . . 275 
Palaniandi v. Apparu . . 61 
Paladret v. Carew . . .173 
Palaniyapa Chetti v. Arumugam 

Chetti 
Fallen v. Ramalinga 
Palmer v. Jones 

V. Newell . 

V. Simmonds 

^—— V. Young . 



. 99 
. 58 
. 187 
. 248 
76,77 
. Ill 
Palaniappa v. Bamanathan . 60 

V. Sreemath Dai- 

vaaikamony . 383, 384, 386 
Palu V. Durgasabu . . 398 

Pandit Bam Narain v. Maulvi 

Muhammad . . 94, 95 

Panduiang v. Anant . . 100 
Pankajammal v. Secretary of 

State . . . .386 

Papillon V. Voice . . .21 
Parbati v. Bam Barun . . 362 
Paramanandasa v. Vinayakrao 362 
Param Singh v. Lalji Mai . 107 
Parker v. M'Kenna . . 260 

V. Brooke . 112, 266, 301 

V. Bloxam . . . 257 

Paramanand v. Baptist Mission 

Society of London . . 158 
Parameswar v. Anardan . 104 

Pareshnath v. Nabogopal . 104 



Pareyasami v. Saluckai Tevar 
Park V. White 
Park Gate Wagon Co., Re j 
Parmeshri v. Girdhari . 
PA.rnell v. Kingston 50, 54, 



317 

267 
278 
385 



Parry v. Warrington 
Parrot, Re . 
Parshotam v. Narbada 
Parsons, Re . 

V. Baker 

V. Hayward 



Parsotam v. Dat Gir 
Parthasarathi v. Tiruvengadam 
Partington v. Beynolds . 
Pass V. Bundag 
Passingham v. Sperborn. 
Pasupati v. Baman 
Patch V. Shore ... 
Pathnkutti v. Avathala Kutti 
Patrick, Re . 
Patrick?). Simpson 
Patten v. Bond 
Pattenden v. Hobson 
Patterson v. Murphy 
Pattison v. Gilford 
Paul V. Compton . 
Pawlett V. The Attorney- 
General 
Paw Thin v. B. 
Payne, In re 

V. Barker . 

V. Compton 

0. Evens 

V. Mortimer 



55, 177 

. 177 

. 135 

. 299 

. 23,53 

. 76 

. 258 

. 383 

361 

193 

214 

135 

104 

51 

398 

. 5a 

. 192 

. 302 

177, 194 

54, 55, 69 

149 



Peacock v. Colling 
Pearce v. Gardener 
Peaise «. Green 
Pearson v. Amicable 
ranee Co. . 

V. Benson 

V. Lane 

- V. Pearson 



7& 



31 
130 
391 
275 
300 
161 
51 
290' 
178 
160, 161 
Aaau- 
. 53 
. 296 
. 277 
. 227 



Peary Mohun v. Narendra Nath 387 
Peat V. Crane . . . 203 
Peohel V. Fowler . . 172, 294 



TABLE OF CASES 



liii 



Teckham v. Taylor 


. 48 


Phillip's Trusts, Be 


. 285 


Peddamuthulaty v. Timma 




Phillpotts V. Phillpotts 


17, 45 


Eeddy 


83, 120 


Phipps V. Lovegrove 


. 180 


Pedder v. Moaely . 


. 53 


Phulohand v. Akbar 


. 393 


Peer Mahomed v. Mahomed 


Piokard v. Anderson 


. 165 


Ebrahim . 


. 197 


Pickering v. Pickering 


. 155 


Peers v. Ceeley 


. 218 


Piokstock V. Lyster 


. 60 


Telham v. Anderson 


. 357 


Pierce v. Scott 


. 237 


Pell V. Dewinton . 


. 226 


Piercy, Be . 


. 46 


Pfilipr TWasfifiTi ?j TCiiTiaTi 


60 




. 39 

76, 288 


Penfold V. Bouoh , 


84, 275 


Pierson v. Game . 




. 53 
. 145 


Piesohell v. Paris . 
Piety V. Stace 


. 364 
171, 318 


Pennell v. Defiell . 


Penn v. Lord Baltimore 


. 27 


Pilkington v. Boughey 


. 76 


Pepper v. Tuokey . 


. 291 


Pince V. Beattie . 


. 252 


Pepperell, Be 


. 271 


Pink V. De Thuisey 


. 157 


Peppercorn v. Wayman . 


. 138 


Piran v. Abdool Karim 


393, 394, 


Peroival v. Wright. 


. 260 




399 


Perens v. Johnson 


. 260 


Pital V. Pratap 


. 386 


Perrot v. Perrot . 


. 147 


Pitt V. Bonner 


. 211 


Perry, In the goods of 


. 124 


Plumtres' Marriage 


Settle- 




. 302 


ment, Be . 


. 293 


— V, JrJiiiips . 


Pertab v. Chitpal Singh 


. 312 


Plowright V. Lambert 


. 268 


Perumal v. Mahamad Easim 383, 


Pocock V. Attorney-General 359. 361 




384, 398 


-^— — V. Beddington . 


166, 171 


Peterson v. Peterson 


. 186 


Pole V. Pole . 


. 93 


Petherpermal v. Muniandy 


45,100, 


Pollard V. Deyle . 


. 261 




107, 108 


Pollexfen v. Moore 


. 137 


Petre v. Bspinasse 


. 71 


Ponnambala v. Muthu 


. 246 


Teyton's Settlement, lie 


. 231 


Poole V. Odling 


. 90 


Phate V. Damodar 


. 386 


V. Pass 


217, 275 


Phate Saheb Bibee v. Damodar 


Pooley V. Quilter . 


258, 265 


Premji . . 392 


399, 400 


Pope's Contract, In re . 


. 166 


Phatma Bi v. Haji Musa 


. 396, 


Port Canning Co., Be 


. 261 




401 


Porter, Be . 


. 43 


Phelpa, Ex parte . 


. 290 


V. Moore . 


. 279 


Phene v. Gillan 


. 221 


Portlook V. Gardner 


. 112 


Phenis' Tmsts, In re 


. 181 


Postlethwaite, iJe . 2 


64, 265, 267 


Phillipo V. Munnings 


. 126 


Pothonier Dent v. De ] 


^tho- 


Philips V. Brydges 


16, 278 


nier 


. 216 




149 


Pott V. Todhunter 
Potter V. Chapman 


56,68 
. 248 


Phillips V. Mullings 


69,70 


V. Philips 81, 184, 


203, 233 


Potts V. Potta 


149 




. 368 


Powell, In re 


. 289 
cal . 357 


Phillipson ■». Gatty 


171, 196 




— — — — - V, Kerry 


. 70 


— — V. Evans . 


142, 203 



Uv 



TABLE OF OASES 



Powell V. Glover . 
— — — V. Powell . 
Powersoourt.w. Powersoourt 
Vovrys v. Blagrave 
V. Mansfield 



Page. 

260 
113 
362 
147 
89 



Prahlad v. Behari . 382, 384 

Pramada v. Poornaohandra 313, 383 



Prankard v. Prankard . 
Pranshankar v. Prannath 

Makanaud 
Prasannamayi Dasi v. Ka- 

dambini Dasi 
Pratt V. Barker 
Prayag Dass v. Mahant Kripa- 

ram . . 
Prayag Dos v. Tirmnala 
Prendergast v. Prendergast 
Preo Nath v. Kazi Mahomed . 
Prevost V. Clarke . 
Price V. Blaokmore 
•^— V. Loaden 
Pride v. Pooke 
Priddy v. Rose 
Priestley v. Ellis . 
Priestman v. Tindall 
Primrose,/M re 
Prince v, Bjrn 
V. Hine 



85 

387 

26 
120 



Proby V. Proby 
Proctor V. Robinson 
Promotho Dossee v. 

Persaud Dutt 
Prosona Coomar 

Administrator-General 



Proaonno Kumar 

Prosonno . 
Prosunno Kumari Debya 

Golab Chand Baboo . 
Prowse V. Spurgin 
Prudential Assurance Co. 

Edmunds .... 
Pryce, Inre . . . . 284 
Pugh V. Vaughan . . 147, 275 
Pullayya v. Ramavadhanulu . 48 
— V. Vedaohela . 48, 50 



389 

3.82 

248 

108 

. 76 

301, 302, 303 

. 221 

170, 189 

. 280 

71,73 

. 210 

. 182 

. 267 

227, 233 

. 128 

. 121 

. Radhika 

. 37, 38, 376 
Ghose V. 
of 

. 137 
Sarodo 
383, 384 

V. 

. 382 
. 185 

V. 



Page 

PuUen V. Ramalinga . 60, 105 
Pulsford V. Devenish . . 260 
Punchanun v. Shib Chunder . 26 
Puninthavelu v. Bhashyam . 283 
Purmanandas v. Venayakrao . 363 
Puram v. Lalji . . . 311 
Purappa Vanalingam Cbetti v. 

NuUasivan Chetti . . 12 
Purikheet Sahoo v. Radha 

Kiahen . . . .106 
Purmessur Ojha v. M. S. 

Goolbee . . . .314 
Puravappavanulingam c. 

Nallasivam . . . 291 

Pusapati Seetharamanuja v. 

Kanduri Vellamma . . 385 

Pushong «. Munia Halwani 113,117 
Pybus V. Smith . . .187 
Pye, Ex parte ... 51 



Queen's College, Cambridge, 

Inre .... 373 

Quicke's Trusts, i?e . . 227 

Quinion v. Home . . . 231 



R. V. Amrital . . .130 

R. V. Lynch . . , .130 
R. V. Mahomed . . .130 
R. V. Newman . . . 358 
R. V. Norfolk Commissioners of 

Sewers . . . .219 
R. V. Portington ... 32 
R. V. Savarkar . . . 130 
R. V. Tolson . . .181 

Raby v. Ridehalgh . 165, 222 

Raekhaldoss Moduck v. Bindoo 

Bashinee Debia 102. 

Rackham v. Siddal . 126, 186 

Radha BuUub Chand v. 

Juggut Chunder Chowdhree 384 



TABLE OP CASES 



Iv 



Page. 
Radhabullub Tagore v. Gopee 

MohunTagore . . .376 
Radliajeebun v. Taramonee . 380 
Radha Mohan Dhar v. Ram 

Das Day . . . .151 
Radhikamohan v. Bonnerjee . 192 
Rae V. Meek . . .144 

RafEety v. Schafield . . 81 
Raghavachetfi v. Thayammal 150 
Raghavalu v. Adinarayana 59. 108 
Raghunath v. Deputy Com- 
missioner, Partapgarh . 397 
Raghunathji v. Varjiwandas 

109, 114, 120 
Raghunathaohari v. Arava- 

mutha Iyengar ... 99 
Raghupati v. Tirumalai . .152 

Rahimunissa v_. Mahadeb . 98 

V. Shaikh . . .392 

Raioharan Pal v. Pyari Mani 

Dasi 152 

Rai Kishori v. Debendranath . 36 
Raja V. Uhed . . .152 

Rajagopala v. Sundaram . 83 

Rajah Muttu Ramalinga 

Setupati v. Perianayagum 

Pillai . . . 389, 391 

Rajah of Kalahasti v. Gana- 

pathi . . . 290 291 

Raja of Katvetnagar v. 

Velayuda. ... 37 

Rajah of Kovilagam v. 

Kottayath . . .239 

Rajah Rajnarain Roy v. 

Juggunnath Pershad Mul- 

liok 105 

Rajah Varmah Valia v. Ravi 

VurmahMutha. . 385,388 

Rajan v. Ardeshir . . 58, 60 

Rajani Kumar o. Gour 

Kishore . . . 59,60 

Raja Papamma Rao v. Sita- 

ramayya .... 120 
Rajarajesvari i). Subiamania . 386 
Rajaiam v. Bhaita Dass . 388 
V. Ganesh . 385, 386 



Page. 
Rajaram v. Lakshmi Sankara. 274 
Rajbana v. Karyara . . 390 
Raj Chunder v. Dinanath . 101 
Rajendra Dutt v. Sham 

Chunder Mitter . . 38, 375 
Rajendralal v. Raj Coomari 36, 357 
Rajesauree v. Jogendro . . 357 
Raj Krishna v. Bepin Behaii . 386 
Raj Lukhee Dabea v. Gokool 

Chunder Chowdhury . .151 
Rajmohun Boae v. The East 

Indian Railway Co. . . 27 
Rajomoyee v. Troylukho . 151 

Rakestraw v. Brewer . .112 
Rakhaldas v. Madhusudan , 311 
Ram V. Ranjit . . .' 381 
Rama ». Sridevi . . . 101 
Ramabai v. Ramaohandra . 99 
Ramabhadra v. Veerabhadra . 163 
Ramaohandra v. Kashinath 

382, 383, 384 

w. Trimbak . 242 

Ramadhan v. Bisheshar . 102 

Ramakrishnappa v. Adinara- 
yana .... 101 
Ramalingam v., Vythilingam 386, 388 
Raman o. Sathu Kutumban . 313 

V. Shathanathan . 242 

Ramanadham ii. Vada Levvai 394 
Bamanathan v. Murugappa . 387 

w. Swaminatha . 110 

Ramanugra Narain v. Maha- 

sundur Kunwar . . 103 

Ramanuja v, Satagopa . . 104 
Ramanund v. Anant Bahadur 

Singh 
Ramasami v. Adinarayana 

V. Chinnan . 

V. Karuppan 

v. Kuppusami 

V. Ramasami 



. 130 
59,62 
. 37 
109, 260 
. 137 
. 23 
. 385 



Rama Varma v, Raman 
Rambabu v. Committee of 

Rameshur . . . . 246 
Rambharti v. Surajbharti . 381 
Ram Chandra v. Kashinath . 38 



Ivi 



TABLE OF OASES 



Page. 
Eamoharan v. Shahebnada . 392 
Ram Chunder Ghosaul v. 

Juggut Monmohiney Dabee . 229 
Eamcoomar v. McQueen . 102 

Earn Coomar Paul v. Jogender 

Nath Baul . . .381 

Eamsur v. Ishan Chunder 387, 388 
Eameswar v. Sri Sri Jin 

Thakur . . . .384 
Eamkissen Pajoshee Maha- 

patur V. Hurrykissen Maha- 

patur . . . .116 

Earn Lall Dutt v. Kishen 

Cliunder Banerjee . . 106 
Eamlall Mookerjee v. The Se- 
cretary of State for India . 387 
Ramlal Thakursidas v. Lakh- 

miohand Muniram . 173, 258 
Eammohan v. Dalmir . . 389 
Earn Narain v. Mahomed Ali . 97 
V. Muhammad 

Hadi .... 100 

Ram Narain Singh v. Ramoon 

Paurey . . . .391 
Earn Parkaah v. Anand 381, 382, 
388, 390 
Ram Prasanna v. Secretary of 

State for India . . . 383 
Eampurtab v. Premsukh . 26 

Eam Eattan v. Puran . .162 

Earn Sahoy Singh v. Mahabeer 

Pershad .... 316 
Eam Sarup v. Maya Shankar . 100 
Eamsay v. Gilchrist . . 62 
Ramsden v. Dyson . .196 

V. Hylton . . 67 

V. Langley . . 217 

Ram Singh v. Santokh . . 48 
Ramskill v. Edwards . . 211 
Ram Soonder Sandial v. Rajah 

Anundnath Roy . . 106 

Eam Soondur Thakoor v. 

Taruoi Chunder Turko- 

ruttun .... 387 
Ramtonoo Mulliok v. Eamgopal 

Mulliok . . . .375 





Page. 


Ramzan v. Zuhur . 


. 399 


Ranohoddas v. Chuniial 


. 59 


Ranchode v. Krishna 


. 257 


Eanchodlal v. Secretary 


of 


State 


. 196 


Eanchordas v. Parbatibai 


360, 361 


Eandall v. Errington, 


263, 264, 


265, 267, 268 


296, 297 


Eaneemoney v. Premmonej 


. 36 


Ranga v. Baba 


. 191 


— V. Srinivasa 


. 99 


Rangaohariar v. Yegna Dik- 


shitar 


386, 390 


Eangammal v. Venkata 


. 107 


Ranganath v. Govind 


118, 121 


Ranganatha v. Bhagirathi 


36, 48 


Ranganayakamma v. Alwar 


Chetti . . . 


. 118 


Eanga Pai v. Baba 


. 211 


Eangasami v. Ranga 


. 388 


Eangilbai v. Vinayak 56, 61, 71 


Eango Balaji v. Mudiyeppa 181 


Rani Kattama Naoliiar 


'0. 


Bothagurusami Tevar 


. 301 


Ranjit Singh v. Jagannath 


. 380 


Raoji V. Amrit Rao 


. 59 


Rao Karum v. Nawab Mahc 


- 


med 


. 151 


Raphael v. Boehm . 


171, 187 


Rasamaya v. Abdul Fata 


. 397 


RatolifEe v. Graves 


. 318 


V. Winch . 


. 228 


Ratnam v. Govindarajulu 


. 313 


Ravji V. Mahadev . 104, 


105, 109 


Raworth v. Parker 


. 74 


Ray V. Adams 


. 76 


Read v. Truelove . 


. 239 


Readdy v. Prendergast . 


268, 269 


Reasut Ali v. Abbott 


399, 400 


Rebbeck, Ee. 


. 236 


Redington v. Redington 


.91, 92 


Reese River Co. v. Attwell 


59, 65 


Reeve t. Parkins . 


. 294 


Reeves v. Baker . 


. 77 


Rehden v. Wesley 145, 


146, 213 


Eeis, JJe 


. 80 



TABLE OF CASES 



IvJi 



Remnant v. Hood 
Renga v, Gnanaprakasa 
Rennie v. Gunga Narain 

Chowdhury 

V. Young . 

Reotee Singh v. Ramjeet 
Retoo Raj Pandey v. Lalljee 

Pandey .... 
Revett V. Harvey . 
Reynolds, Ex parte 
Rhodes v. Bates 

V. Monies . 

V. Padmanabha ■ 

Richards, Re 

V. Delbridge 

ilickards v. Gledstanea . 
Richardson v. Richardson 

V. SmaUwood 

— V. Younge . 

Hide V. Kidder 
Ridgway v. Newstead 
Rigby, Ex parte 
Riky V. Kemmis . 
Ripon V. Habart . 
Robeideau v. Rous 
Roberts, Re 

V. Gordon . 

V. Tunstall 



Page. 
183 
109 

102 
196 
317 



. 152 

. 116 

. 290 

120, 121 

. 188 

. 37 

50, 213 

50, 51, 52 

. 285 

52,54 

62,64 

. 247 

57, 85, 86, 88 

126, 186 

. 245 

. 205 

. 149 

27,29 

. 143 

. 125 

197, 267 

175, 190, 

246 

Robins, Re . . . .277 

Robinson v. Harkin 167, 209, 211, 

229,241,242, 243 

1). M'Donnell . . 65 

V. Litton . . 147 

V. Lowater . 234, 235 

V. Rett 136, 252, 254, 

258 

296, 297 

169 

279 

277 

241 

185 

82 

235, 234 



Robertson v. Armstrong 



-^— — V. Ridley 

V. Robinson 

Eochford v. Haokman 
Rocke V. Rooke 
Rodbard v. Cooke 
Bogeia V. Ingham . 
— ^— V. Rogers . 
— — V. Skilliooine 



Page. 
Rogeraon, Re , . • 46 
Rohee Lall v. Dindyal Lall . 100 
Rojomoyee v. Troyluckho 



Mohiney . 
RoUand v. Hart 
Rolls, Re 

- V. Miller 
Rooke V. Dawson 
Roop Lai V. Lakshmidos 



363, 375 

. 285 
. 86 
. 283 
. 158 
379, 381, 
385 



V. 



299 
81 
39 

229 
13 



Roop Narain Singh 

Gangadhar Pershad Narain 
Roper V. Radcliffe 
Roaa V. Rosa 
Rossiter v. Trafalgar Life 

Assurance Co. . 
Rouohef oucauld v. Boustead 

49, 87, 88, 197, 192 
Roushun Khatoon Chowdrain v. 

The Collector of Mymen- 

singh 
Routh V. Howall . 
Rowland V. Morgan 

■». Witherden 

Rowley v. Adams . 
V, Ginnever 



Roxburghe v. Cox 

Roybould, Re 

Royle, Re 

Rujabai v. Ismail Ahmed 



167; 



105 
145 
223 
171 
. 142 
. 112 
. 286 
. 219 
. 224 
56, 117, 
120 
Ruknadawla Nowab Ahmed Ali 

Khan v. Hurdwari Mull 95, 97, 99 
Rumney, Re . . . 245 

Runohordas v. Parvatibai . 124 
Rupa V. Krishnaji . 380, 397 

Rup Narain v. Junko Bye . 398 
Russell V. Jackson . . 76 

V. Kellett . 357, 362, 365 

Rustam Ali v. Mushtaq . . 400 
Ryal V. Ryal . . 85, 86 

Ryall V. Rolle . . .135 

Ryan v. Stockdale . . 290 

Ryoroft v. Christy . . 53 

Ryder v. Bickerton . .164 

Rymer v. Stanfield . . 363 



Iviii 



TABLE OP CASES 



Page. 

Sarat Chunder v. Gopal . 102, 19& 
Sarat Chandra v. Nahapiet . 26 









dra 


ieiL£ip 


t-yiiau 


361 


Sabin v. Heap 




236 


Saravana v. Muttayi 


. 314 


Sabjan v. Abdul Azeez 


48,54 


Sarbesh v. Khetrapal 


. 173 


Saoaram v. Laxmabai . 


, 


314 


Sarkam Abu v. Rahamar 


t . 388 


Saohitananda v. Baloram 




104 


Sarkies v. Prosonnomoyee 


Saokville West v. Viscount 




Dossee 129, 131, 135, 136 


Holmesdale 




21 


Sarkum Abu v Rahaman 


385, 398 


Sadappa v. Periasami 




381 


Sarojini v. Ganendra 


. 36 


Sadasiv 11. Trimbak 


64,65 


Sathappayyar v. Periasami 289, 


Sadati v. Dhakubai 




313 




381, 386 


Sadd, iJe 




221 


Sathianama v. Saravanabayi . 382 


Sadhu Singh v. Secretary 


of 




Satisli Chandra v. Btojogopal . 105 


State for India . 




130 


Satya Kumar v. Satya Kripal 199, 


Sadler v. Hobbs . 




209 


205, 206, 207, 209, 245 


Saffron Walden Second Benefit 




Saul V. Pattinson . 


. 158 


Society v. Bayner 




285 


Saunders v. Dehew 




298 


Sagun V. Kaji 


380 


398 






275 


Sahebzada Singh v. Ghundaree 








277 


Roy ... 


, 


112 


V. Watson 




59 


Sajedur Raja v. Gour Mohun . 


369 


Savage v. Robertson 




34 


Sajjad V. Nawab Wazir Ali 


. 


120 


Sawyer v. Goodwin 




188 


Sale V. Moore 


76,77 






211 


Saliq-un-nissa v. Mati . 




394 


Sayad v. Fatteh . 




388 


Salter v. Cavanagh 


82 


192 


Sayad Abdulla v. Sayad 


Zain 387, 


Saltmarsh v. Barrett 




182 




399, 401 


Salusbury v. Bagott 


, 


300 


. Sayed Zakir Ali 11. Mt 


. Um- 


V. Denton 




289 


matul 


. 71 


Salway v. Salway . 


, 


145 


Sayre v. Hughes 




. 90 


Saminatha v. Puruahottama 


, 


383 


Scales V. Baker 




85, 310 


Saminatha Pandara v. 


3el- 




Scawin v. Scawin 




. 92 


lappa Chetti 


. 


381 


Scott, Re . 




. 233 


Sandeon v. Hooper 




220 


V. Beoher 




294, 295 


Sander v. Heathfield 




228 


u. Bentley 




. 193 


Sander's Trusts, iJe 


. 


71 


V. Davis 




28 267 


Sanderson v. Walker 264, 


270 


297 


V. Key 




77,78 


Sanderson's Trusts, In re 


39 


248 


V. Milne 




. 275 


Sanjivaroya v. Balambiki 




97 


V. Nesbitt 




. 267 


Sankarappa v. Kamayya 


58 


,105 


V. Scott 




. 68 


Sankunni v. Narayanan 




101 


V. Surman 




. 135 


Sanotun Bysaok v. S. 


M. 




Scottish Equitable Lif 


5 As- 


Juggut Soondree Dossee 




379 


suranoe Society, Re 


86,89 


Sarah Knight's will. Be . 




135 


Sorope «. Qffley 


. 120 


Sarat v. Mohun 




132 


Soroope v. Soroope 




. 


91 



TABLE OP OASES 



lix 



Page. 
SouUy V. Delany . . .123 
Soulthorp V. Buigess . . 87 
Soulthoipe V. Tipper 142, 179, 186, 

189 
Seagram v. Knight . 148, 226 

Sealy v. Stawell . . . 202 
Searle v. Law ... 52 

Secretary of State for India v. 

Ambalavana . . . 149 

— — ^ V. Bapuji . 193 

— ^— «. Datta- 

treya .... 299 

Segrave v. Kir wan . .113 

Selby V. Bowie . . 172, 177 

Selwyn v. Garfite . . 249, 293 
Sennayan v. Sinnappan . . 385 
Sesha V. Bavaji . . . 104 

Seshadri Iyengar v. Nataraja 

Ayyar . . . .373 
Seshayyangar v. Seshayyangar 391 
Seth Nemichand, Inre . . 68 
Sewaram v. Bajrangdat . . 26 

Shafto V. Adams ... 69 
Shakazadi Hajra Begam v. 

Khaja Hossein Ali Khan . 396 
Shaher Banco v. Aga Maho- 
med .... 400 
Shah Gulam Rahumtulla Sahib 

V. Mahommed Akbai Sahib 

400, 401 
Shah Moheeooddeen Ahmed 

V. Elahee Buksh . . 400 

Shah Wajed Hosaein v. Baboo 

Nankoo Singh . . .316 
Shaik Dawood v. Hussain 

Saiba .... 248 

Shailajananda v. Umeshananda 291 
Shales v. Shales ... 92 
Shama Churn v. Abdul Kabee 

397, 398 
Shama Kanta v. Kuaum 

Kumari .... 26 
Shamaldhone v. Akshimoni 

112, 117 
Shama Soonduiee v. Jumoona 

Chowdhrain . . 151, 152 



Page. 
Shambati v. Jago Bibi . .120 
Sham Koer v. Dah Koer • . 120 
Sham Lai v. Amarendra 100, 107 

V. Amarendra Nath . 107 

V. Johri Mai . . 97 

Sham Sundar v. Achhan . > . 23 
Shangara v. Krishnan . . 105 
Shanfcar v. Hardeo . .163 

Shankaiappa v. Kamayya . 60 
Sharp V. Cosserat ... 42 

w. Foy . . . 285 

V. Jackson . . .52, 73 

V. Leaah . . 114, 121 

V. Lush . . .222 

Shaw, iJe .... 34 

V. Borrer . . .226 

V. Holland . . .260 

I). Lawless . . . 220 

V. Turbett . .193 

Shazadi v. Sheikh ... 37 
Shee V. Hale ... 44 

Sheffield v. The Duchess of 

Buckinghamshire . . 30 
Sheik V. Nawab Mir . . 400 
Sheik Abdul v. Poian . 380, 400 
Sheik Dawood v. Huasain 



Saiba 
Sheikh Ghulam v. 

Nath 
Sheik Mahomed v. 



. 246 
Diwan Shiv 

. 301 
Amarohand 

379, 380 
Sheo V. Ram . . . 383 

Sheolal v. Goor . . .104 
Sheo Nath v. Janki Prasad . 264 
Sheo Pershad Singh v. M. S. 

Soorjbunsee Kooer . . 316 
Sheo Prasad v. Aya Ram . 386 

Sheoraj v. Ammeruddin . 94 

Sheoraj Kooer v. Nuokohedee 

Lall . . 313,314,316 
Sheoratan v. Ram . . 386 
Sheoratan v. Ram Pargash . 29 
Sheo Shankar v. Ram . 192, 357 
Shephard v. Harris 144, 241, 245 
Shepherd v. Mouls . . 169 
V. Nottige . . 76 



k 



TABLE OF CASES 





Page. 


Sheridan v. Joyce . 


. 180 


Sheriff J). Axe 


. 250, 260 


Sherratt v. Bentley 


. 137 


Sherwood, Re 


. 250, 254 



Shewen v. Vanderhoist , . 237 
Shiamsundar v. Dilganjam . 26 
Shib Narain v. Shank^r . .58, 59 
Shield, Be . . . 51, 52 

Shoojat Ali v. Zumeerood- 

deen .... 398 

Shookmoy v. Monohari . 12, 36 

Shoshi V. Tarokessur . . 32 
Shovelton v. Shovelton . 76, 80 

Shrewsbury v. Hornby . . 357 
Shri Ganesh v. Keaharav . 38 

Shuldham v. Royal Naitional 

Life-Boat Institution . 157 

Shunmugam v. Sankaramurthi 291 
Shurbo Narain Singh v. Ally 

Buksh Shah . . .396 
Siddhan t). Gawrishankar 110, 

391, 399 
Sidlingappa v. Hiraa . 107, 108 
Sidmouth v. Sidmouth . 86, 92 

Sidney, Ee . ^ . .84 
Siggera v. Evans . . 71, 73 

Sikher v. Dalputty . 313, 316 

Silkston and Haigh Moore 

Coal Co. V. Edey . , 296 

Silliok V. Booth . . .181 
Simms v. Registrar of Probates 62 
Simon v. Barber . . . 364 
Simpson v. Brown . . 233 

——— V. Chapman . . 262 
Sinclair, Be . . . .84 

V. Brougham . . 308 

Singa Pillai v. Ayyaneri 

Goundan .... 104 
Sirdar Sainey v. Piran Singh. 48 
Sir Dinshaw Manekji Petit v. 

Sir Jamsetji Jijibai . 13, 49 

Sir Jamsetji Jijibai v, Sonabai 391 
Sisson, Be . , . . 216 

V. Shaw . . 227, 233 

Sital V. Pertab . . .386 
SitaJ Prasad w. Par bhu . .118 



Page- 
Sita Nath v. Nobin Chunder . 109 
Sitapershad v. Thakur Dass 388, 389 
Sitara Begum v. Md. lahaq 

Khan . . , 100,101 
Sitharama v. Merusami . . 386 
Sitharamaehetty v. Sir S. 

Subramanya Iyer . 291, 373 
Sivasankara v. Subramanya . 37 



Skarf V. Soulby 
Skidmore v. Bradford 
Skinner, Be . 
Skottowe V. Williams 
Skowley, Be 
Slade V. Chaine 
Slaney v. Watney 
Sleeman v. Wilson 
Sleight V. Lawson . 
Slim V. Crouoher . 
Sloane v. Cadogan 
Sloman v. The Bank of 

England . 
Sloper V. Cottrell . 
Sluysken v. Hunter 
Small V. Marwood 
Smart, Ex parte 
Smith, He .51, 153, 165, 

247, 267 



62,64 
. 91 

161, 275 
. 121 
. 218 
. 262 

137, 254 
. 260 
. 193 
. 279 
52,53 



183 

53 

70 

138 

286 



V. Armitage 

1. Baker 

V. Bolden 

V. Dale 

V. Dresser 

V. Guyon 

V. Hurst 

V. Kay 

V. King 

V. Lyne 

V. Smith 

V. Snow 

V. Wheeler 

V. White 

V. Willis 



Smith's Estate, Be 
Sneesby v. Thorne 
Snowdon v. Dales 
Soar V. Ashwell 



. 193 
. 85 
180, 275 
218, 248 
217 
236 
73 
114 
132 
55,69 
126, 135, 285 
276 
273 
32 
216 
135 
173 
39, 279 
186, 188, 191, 192 



TABLE OF CASES 



Ixi 



Page. 
Soar V. Foster . . 86, 89 

Sookett V. Wray . . .131 
Soleeman v. Eahimtula . . 237 
Someiset v. Cox . . 285, 286 
Sonatun Bysaok v. Sreemutty 
Jaggat Soondree Dossee 375, 

380, 381 
Sonet ti. Mirza . . 160, 262 
Sonley v. The Cloekmaker's Co. 287 
Soodheekeena Chowdrain v. 

Gopee Mohun Sein . . 56 
Sooiendro Pershad Dobey v. 

Nundun Misser . . .313 
Soorjeemoney Dosee v. Deno- 

bundoo Mullick . . 32 

Sorabji v. Ruttonji . . 26 

Sorabji Edulji v. Govind Ramji 282 
Sorju w. Bir . . . . 102 
Soudaminey Dosaee v. Jogesli 

Chunder Dutt . . 36, 38 

Southampton Imperial Hostel 

Company, Ee . . .221 

Southwell V. Martin . . 275 
Sowarsby v. Lacey . . 236 

Speigh, Re . . . .209 
Speight, JJe . 144,241,243,246 

Spencer, Re . . .112, 246 
Spirett V. Willows . 63, 64 

Spring V. Pride . . 268, 269 
Springett v. Dashwood . . 161 
Sreemanchunder Dey v. Gopal 

Chunder Chucker butty . 99 
Sreenath Roy v. Cally Doss . 26 
Sree Rajah Muttu Ramalinga 

Setupati . . . .373 
Sri V. Surajbali . . .152 
Sii Basant Daas v. Ganga Dasa 390 
Sri Ganesh v. Keshavarav . 311 
Srimati Debia Chowdhrani v. 

Bimola Soondvree Debia . 107 
Srimati Jagadamba Dasi v. 

Srimati Padamani Dasi . 26 
Srimati Janaki Devi v. Sri 

Gopal . . . .386 
Srimati Kamini Debi v. Ram- 

lochan Sircar . . . 264 



Page. 
Srimati Krishnaiamani Dosi v. 

Ananda Krishna Bose 10, 37 

Srimati Nrityamoni v. Lakhan 

Chunder .... 100 
Srimati Sukhimani Dasi v. 

Mahendranath Dutt . . 105 
Srimat Raja Yarlagada v. 

Makerla Sridevamma . 390 

Srinath v. E'adhanath . .290 
Srinivasa v. Kannappa . . 26 
-^— — V. Krishnaaami . 104 

V. Raghava . . 369 

V. Srinivasa . . 320 

Srinivasammal v. Vijiammal . 48 
Sri Seetharamaswami v. Sri 

Meruswami . . . 381 
Stacey v. Elph 125, 137, 265 

Staokpole v. Howell . . 137 
Stafford V Mddon . , . 320 

V.Stafford . . 196 

Standen v. Bullock . . 66 

Standing v. Bouriag . . 87 
Stanea v. Parker . . . 253 
Stanford v. Roberts . . 215 
Stanger, Re . . . .39 
Staniland v. Staniland ... 79 
Stanley v. Lennard . . 19 

V. Stanley . . 277 

Stansfield v. Habergham . 147 

Stanton v. Hall ... 42 
Stapleton v. Stapleton . 50, 54 

Stead V. Mellor . . .76 
Stenning, Re . . . 309 

Stephens v. Green 282, 286, 287 

-^— — V. James . . 42 

V. Venables . . 285 

Stevens, Re 123, 138, 142, 143, 240 

V. Austen , . " . 173 

Steward, Re ... 44 

Stewart, Ex parte . . . 285 

'■ V. Hoare . . . 216 

Stickney v. Sewell . 167, 271 

Stileman v. Ashdown . 64, 91 

Stikeman v. Dawson . 132, 250 
Stokes V. Prance . 113, 188, 192 
Stokoe V. Cowan . . 57, 60 



ixii 



TABLE OF OASES 



Page. 

Stone V. Godfrey . . 159, 185 

V. Liokorish . 250, 253 

V. Liddeidale . . 32 

V. Stone . . 92, 142 

Stonehouse v. Evelyn . . 83 
Story V. Gape . . .126 

Slott V. Milne . . 182, 220 

Stratford v. Twynam . . 271 
Stretz's Trusts, He . . 44 

Strong V. Strong ... 59 
Stroud V. Gwyer . . .262 

Stroughill V. Anstey 173, 177, 235, 

236 
Stuart V. Stuart . . .165 
Stubba V. Sargon ... 84 
Stump V. Gaby . . . 121 
Styles V. Guy 123, 142, 143, 164, 

195, 209 
Suba Bibi v. Balgobind . 60, 68 

Subba V. Gopalasami . . 290 

V. Ramasami . . 104 

Subbaraya v. Ramasami . 391 

Subbareddi v. Chengalamma . 149 
Subbayya v. Mahomed Mustafa 191 
Subha V. Hara Lai . . . 101 
Suboodra' Bebee v. Bikromadit 

Singh . . . 109,159 
Subramania v. A. L. V. R. R. 

M- Muthia 

V. Ponnusami 

V. Piayag Dos 

Subramanian «. Alagappa 
Subramanya v. Arunaohella 
V. Dakshina- 



moorthi 



■ V. Kadiresan 
• V, Secretary 



of 



61 
313 
140 
104 
104 

61 
306 

391 



State 
Subramanya Chetty a. Raja 

Rajeswara . . 63, 301 

Subraya v. Perumal . . 59 
Subramanya Karannayau. Subraya 

Padyaya .... 242 
Sudamdikh Coal Co. v. Empire 

Coal Co 26 

Suddasook v. Ram Chunder 48, 69 



Page- 

120 
261 
391 
101 
100 



99 



Sudisht Lai v. Sheobarat 
Sugden v. Crossland 
Sukhbir v. Nihal . 
Sulaiman v. Pattuna 
Suleiman v. Mehendi 
Suleman v. Nawab Mehdi . 99 
Sumsuddin v. Abdul . . 120 
Sundara Bai v. Tirumal . . 26 
Sund'arambal v. Yogavara 385, 386 
Sundari Debi v. Gobind Mani . 181 
Sundar Lai v. Fakirchand . 102 
Sundrabai v. Shivnarayana . 313 
Suppammal v. Collector of 

Tanjore . . . 379, 381 
Suput Singh v. Imrit Tewari . 211 
Suraj Bunsi Koer v. Sheo 

Persad Singh . . .317 
Suraparaju v. Veerabhadrudu . 23 
Surendra Keshub v. Doorga 

Soondary . . 12, 276, 380 

Surendra Nath v. Kali Gopal . 104 
Surja Dutta v. Ekadhia Koch 383 
Suryarao v. Gungadhara . 33 

Suryanaiayana v. Butchiah . 107 
Susticharn v. Annopurna . 101 

Sutolifie V. Richardson . . 79 
Sutherland v. Cooke . . 152 
Suttaprosunno Ghosal v. 

Rakhalmoney Doasee . 50 

Sutton V. Jones . . 261, 265 

V. Wilders . 144, 184 

Swain, Re . . . .18 
Swarnamoyi v. Srinibash . 100 

Swayne v. Swayue . . 287 

Swifte V. Attorney-General for 

Ireland .... 358 
Swinbanks, Ex parte . . 235 
Swinfen v. Swinfen . 145, 146 

Srimad Raja Yarlagaddha v. 

Makerta Sridewamma . 386 

Syeda Bibee v. Mughal Jan . 394 
Syed Khodabunda Khan v. 

M. S. Oomutul Fatima . 186 
Syed Nurul v. Sheosahai . 23 
Sykes, Ee . . . .257 
V. Hastings . . . 261 



TABLE OF OASES 



Ixiii 



Page. 
Sykes v. Sykes ... 35 
Symea v. Hughes . .17, 45, 83 
Syud Asheerooddeen v. S. M. 

DroboMoyee . . .399 
Syud Bazayet Hossein v. Dooli 

Chund . . . .318 
Syud Imdad Hossein v. Maho- 
med Ali Khan . . .399 
Syud Tasouwar Ali v. Koonj 
Behare Lai . 313, 314, 316 



Tailor v. Brookes . 
Tahboonissa Bibee v. 
Sham Kishoie Roy 
Talbot V. Maishfield 
«. Radnor . 



. 158 
Koomar 

. 382 
. 248 
. 137 
44, 715 



Tancred's Settlement, Re 
Tandavaraya Mudali v. Valli 

Ammal . . . .316 
Tanner ti. El worthy . .111 
Tara Lai v. Sarobar . . 102 
Tara Monee Debia v. Shibnath 

Tulapatur 
Tara Soonduree Debee v. Bojul 

Monee Dossee . 
Tarleton v. Hornby. 
V. Liddell 



Tarragona, Re 
Tate V. Leithhead . 
Tatham v. Vernon 
Taylor v. Allein 
V. Blakelook 



. 103 
. 211 

. 65 
. 128 
. 50 
. 18 
46, 295 
. 300 
195, 198 
. 62 
. 76 
223, 295 
160, 262 



V. Cartwright 

V. Coenen . 

V. George . 

V. Glanville 

11. Haygarth 

V. London and County 

Banking Co. 73, 21 3, 283, 286 

-^— — V. Millington . . 140 

V. Plummer . 301, 303 

V. Taylor 92, 132, 233 

Teague's Settlement, In re . 38 
Tebbs V. Carpenter 141, 142, 

199, 203, 318, 319 



Page. 
Teen Cowrie v. Denonath 129 

Tempest, Ex parte . . 66 

• V. Lord Camoys 17, 135, 

158, 287 



Tennant v. Trenohard 
Terrell v. Matthews 
Thaoker v. Key 
Thaokersey v. Hurbhum 



Xhakore Fatehsingh 

Bamanji . 
Thakro v. Ganga . 
Thakur Ram v. Saiyed . 
Thakur Rohini v. Visvanath . 
Thakur Share Bahadur Singh 
V. Thakurain Dariao Kuar . 
Thanikaohela v. Alimelu 
Thiruvengadath Ayyangar 
Srinivasa Thathachariar 
Thirumalayappa v. Swami 
Thiruvengada v. Satagopa 
Tholasinga v. Vedaohelayya . 

Thomas v. Bering 

u. Muthurama 

— — V. Thomas 

V. Williams 

Thomas Pillay v. Muthuraman 

Thompson v. Blackstone 

V. Brown 

V. Clive 

V. Corby 

V. Eastwood . 

V. Pinch 



. 270 
203, 209 

. 248 
12, 289, 
357, 380 

V. 

85, 196 
. 100 



394 
104 

130 
. 151 

V. 

289, 291 
. 98 



V. Harrison 

V. Linch 

V. Simpson 

V. Thomas 

V. Thompson 

V. Tomkins 

V. Webster 

V. Whitmora 

Thomson v. Eastwood 



V. Shakespeare 

Thoiby V. Yaats . 



259 
191 
157 
64 
128 
157 
65 
173 
. 70 
. 161 
. 357 
. 268 
70, 197, 200, 
201, 243 
. 198 
. 194 
. 301 
. 33 
. 358 
. 285 
62, 63, 68 
. 70 
197, 198, 
275 
45, 359 
. 275 



Ixiv 



TABLE OF OASES 



Thomber v. Wilson 
Thorndike v. Hunt 
Thome v. Heard . 
Thornton v. Howe 
Thorp V. Owen 
Thorpe, Se . 
Thrupp V. Collett . 
Thukrain Sookiaj v. The Gov- 
ernment of India 
Tibbits V. Tibbits '. 
Tiekner v. Old 
V. Smith . 



Page. 
. 3S7 
. 300 
. 188 
32, 44, 357 
53, 78, 79 
. 224 



351 



60, 



130 

76 

194 

320 

105 

. 278 

. 161 

. 104 

. 126 

285, 286 

. 149 



Tilak Chund v. Jitamal 

Tilbot, Re . 

Tillot, Be 

Timmanna v. Mahabala 

Timmis, Ee . 

Timson v. Ramsbottom 

Tipping V. Eckeraley 

Tirumalayappa v. Swami . 99 

Tiiupatirayudu v. Lakshmi- 

narasimha . 140, 164, 171 

Tiruvambala v. Chinnama 

Pandaram . . . 390 

Tiruvenkata i>. Seshadri . 80 

Titley v. Wolstenholme . . 244 
Todd V. Moorhouse . 89, 220 

1). Wilson . . .253 

Toker v. Toker . 69, 114, 120 

Toller V. Carteret . . 27, 29 

Tomlin v. Luce . . 109, 172 
Tomson w. Judge . . . 117 
Toondun Singh v. Pokh Narain 

Singh . . . .102 
Toplis V. Hurrell . . .209 
Towers v. African Tug Com- 
pany . . . .194 
Townend v. Toker . 56, 67, 68 

V. Townend . 257, 262 

Townley v. Bedwell . . 358 

V. Sherborne . 204, 246 

V. Barber . . 209 

V. Early . . 44 

— ■ V. Townaend . . 310 

V. Westaoott . 64, 90 

Towoaon v. Tickell . 137, 138 



Trafiord v. Boehm 
Train v. Clapperton 
Travis v. Illingworth 
Treepoora Soondery 



Page. 

. 164, 194 
. 157 
. 217 

Dossee 



V. Debendranath Tagore 
Tregonwell v. Sydenham 
Trench v. Harrison 
Trevelyan v. Charter 
Treves v. Townshend 
Trevor v. Hutchins 
Tricumdas v. KJiimji 
Trikumdas v. Haridas 
Trimbak Madhav v. 

Hari 



. 27 
82,84 

. 301, 310 
. 297 
. 319 
. 228 

. 357, 36& 
. 361 
Narayan 

. 224 



Trimbakpuri v. Gangabai 388, 390 
Trustee of the British Museum 



V. White . 
Trutch V. Lamprell 
Tryon, Re . 
Tucker v. Burrow . 
— — V. Horneman 
Tudball V. Medlicott 
TuU V. Parlett 
Tulsi V. Siddhi 



. 358 
. 243 
138, 143 
89,92 
. 223 
. 142 
. 68 
. 381 



Tumez Begum v. Purihut Hussan 49- 
Turner, Re . . 87, 139, 220 

V. Carney . . . 240 

1). Collins . . 114,121 

182 



— V. Frampton 

— V. Harvey . 
V. Maule 

— V. Ogden . 

— V. Ruck 



V. Turner . 

Turney v. Turney . 
Tweedie and Miles, Ee 
Twopeny v. Peyton 
Twyne's Case 
Tyler, Re 



U 



318, 



172 
182 
357 
179 
320 
37 
179 
39 
58, 119 
.18, 46 



Uda Begum v. Imamuddin 85, 197 
Umachakutti v. Ummerkutti . 60 
Uman Pershad v. Gandharp .94, 99 



TABLE OF OASES 



Ixv 



Underwood v. Stevens 



309 



286 



283 



358 
100 
375 



Page. 
126, 203, 
204, 205, 210 
Uniaoke, Be . . . .123 
Union Bank of Aiistralasia v. 

Murray Aynaley 
Union Bank of London v. 

Kent .... 

Union Bank of Manoliester, 

Ex parte 
University of Bombay v. The 

Municipal Commissioners 

of Bombay 
Upendra v. Bhupendra . 
Upandra Lai v. Hem Chandra 
Uroh ». Walker 124, 125, 127, 

137, 182 
Usain V. Nizurali . . . 398 
Uvedale v. Ettriok . . 291 

Uzhar Ali v. Ultaf Patima . 97 



Vaohall v. Roberta . . 154 

Vaghoji V. Camaji . . 26 

Vaidyanatha v. Vaidyanatha . 99 

Vaikuntarama v. Adimoolam . 64 

Vaithyalinga v. Somasundara . 383 
Vandenberg v. Palmer . . 54, 65 
Vance v. Vance . 90, 91, 212 

Vasudev v. Janardan . . 64 

Vaughan v. Vanderstegen . 222 

Vaughton v. Noble . . 258 

Vedapurthi v. Vallabha . 382 

Velji Harji v. Bharmal . . 282 

Venkata v. Kannan . . 38 

V. Srinivasa . . 109 

Venkataohela v. Subramanya . 104 
Venkatachelapati o. Subba- 

rayudu .... 391 
Venkatachellam v. Puruahottam 101 
Venkataramayya v. Venkatar- 

rajulu .... 101 
Venkataramayyan v. Ven- 

katasubramania Dikshatar . 316 
Venkatesa Nayudu v. Shri- 

man Shatagopa Swami • 12 

A, LT 



Venkatesvara v. Shekari 
— — V. Somasundaram 



Venkoba v. Bambhaji . 
Vermon v. Vadrey 
Vezey v. Jamson . 
Viokers v. Scott 
Vidyapurna v. Vidyanidhi 
Villiers v. Beaumont 
Vincent v. Newcombe 
V. Vincent 



385 
61 
. 26 
. 189 
. 359 
. 177 

381, 389 
. 65 
. 154 
. 61 

175, 235 
. 147 



311 
383 
267 



50 



Viney v. Chaplin . 

Viner v. Vaughan . 

Virasami v. Subba 

Viravarma v. Valappil . 

Visvanathan v. Brahmanathan 

Vital Vishva Nath Prabhu v. 
Bam Chandra Sadashiv 
Kirkire .... 

Viziaramaraju v. The Secre- 
tary of State for India 133, 193 

Voughan, Se ... 46 

Voyle V. Hughes ... 63 

Vullubhdas v. Gordhandas . 36 

Vundravandaa v. Cursondas 191, 

192, 361 

Vusa Chandra v. Vusa Subba- 
rayudu .... 385 

Vyamkapaoharya v. Yamana- 
sami .... 103 

Vyse .W.Foster . . 257,320 



W 

Wade V. Paget 
Wahid Ali v. AshrufE 
Wainf ord v. Heyle 
Waite V. Littlewood 
Waidamis, Be 
Waldo V. Waldo 
Waldy v^ Gray 
Walker, Be 

V. Linom 

— — V. Shore 

V. Smallwood 

V. Smith . 



16 
. 400 
. 134 
. 232 
. 245 
. 226 
. 300 
. 250 
. 215 
. 178 
171, 237 
. 117 



Ixvi 



TABIE OF CASES 



Walker, v. Southall .. . 173 

V. Symonds 143, 160, 164, 

195,210,211,246 



Wa^ki^s, Ex parte 
Wallace v. Anderaon 
Waller v. Barrett 
Walley v. Walley 
Wallia, Re . 
V. S. G. 



for 



Zealand . 
Wallwyn v. Coutts 
Walrond v. Walrond 
Walsh V. Gladstone 
Walters .v. Woodbridge 
Warbmton v. Hill 
Ward V. Audland 

V. Butler 

V. Dunoombe 

V. HipWl 

V. Shallett 

I V. Ward 
Ware «. Cann 
Warman v. Seaman 
Warner v. Jaoob 
Warren, Re . 

V. Clanoey 

V. Eudall 

Warriner v. Rogers 
Warter v. Anderson 
Wasdale, Re 

Wasiq Ali v. Government 
Waterhouae «. Standfield 
Wat kins v. Cheek 
Watson, Re . 



283 
41 
126 
112 
250 



New 
. 18 
. 71 
. 170 
. 357 
. 218 

286, 287 
. 51 
. 123 
279, 282, 285 
. 247 
. 67 
. 225 
. 39 
. 87 
. 109 
. 224 
. 157 
. 137 
.50, 54 

217, 219 
. 282 



, 399 
. 30 
. 236 
. 221 
. 83 
. 74 
. 51 
. 218 
264, 271, 296 
Watts V. Girdlestone . .164 
Way, iJe . . 50,53,70 

Way's Trust, Re . . .55 
Wazeruddin v. Deoki Nandan 58 
Wale V. Olive . . 52, 53 

Weall, Re 209, 224, 275 

Webb, iie ■ ., . .253 



V. Knight 

——— - V. Parker 

V. Row 

V. Toons . 



Page. 

Webb, V. Earl of Shaftesbury 

218, 219, 229, 254, 267, 293, 294 

V. Rorke . . . 266 

V. Wools ... 77 

Webster v. Webster . . 285 
Wedderburn v. Wedderburn 

250, 257, 258 



Wedgwood v. Adams 
Weir V. Brown 
Weld-Blundell v. Wolesley 
Weller v. Ker 
Wellesley v. Wellesley . 
Wells and Hopfcinson's 

tract. Re . 
Wenham, Re 
Weaoott V. Culliford 
West V. Jones 

V. Turner 

Westbrooke, Re 
Westley v. Clark . 
Westmoreland v. Holland 
Westover v. Chapman . 
Wethrell v. Wilson 
Wharton v. Masterman . 
Wheatley v. Purr . 
Wheeler v. Smith . 
Whelpdale v. Cookson 
Whichoote v. Lawrence 



182 
358 
148 
158 
80 



Whicker v. Hume . 
Whitaker v. Dacre . 

V. Kershaw 

Whitcomb v. Minchin 
White V. Barton 
V. Baugh 

- V. Baylor 

V. Briggs 

V. Cuddon 

V. Poljambe 

V. Jackson 

V. Tommy 

V. White 



Con- 

. 241 

. 229 

. 182 

. 175 

. 44 

216, 250 

. 200 

. 142 

165, 271 

78.80 

. 277 

50, 54, 55 

78,85 

. 264 

263, 

264, 267, 268, 297 
358 



Whiteley, Re 
Whitfield V. Priokelt 
Whitmore v. Tiuquand 
Whitney v. Smith . 



. 308 
185, 222 
. 266 
. 123 
. 145 
. 287 
75, 76, 77 

173, 231 

174, 231 
160, 161 

266 
362 
247 
43 
74 
252 



TABLE OF OASES 



Ixvii 



Whittingstall v. King 
Widdowson v. Duok 
Widow of Shunkar Sahai 

Raja Kashi Persbad 
Wiglesworth v. Wigle&worth 
Wiloook's Settlement, Be 
Wilding V. Bolder . 
^— ^ V. Richards 



Page. 

. 284 
. 237 



Wilea V. Gresham . 
Wilke'a Charity, Be 
Wilkins v. Fry 

V. Jodrell 

Wilkinson v. Bewick 

V. Duncan 

V. Hartley 

V. Lindgren 

V. Malin 

V. Parry 

— — - u. Wilkinson 



Wilks V. Groom 
Willata V. Busby . 
Willes V. Greenhill 
Willett V. Blandford 
Williams, In re 



- V. Arkle . 

- V. Bayley 

■ V. Coade 
• V. Corhett 

■ V. Duke of Bolton 

■ V. Kershaw 

■ V. Nixon 123, 124, 199, 

205, 210 



130 

171 

. 32 

135, 292 

. 73 

198, 293, 228 

. 248 

. 230 

. 79 

. 146 

. 178 

. 231 

. 362 

247, 367 

. 198 

216, 219 

. 145 

. 56 

280, 285, 286 

. 257, 259 

12, 15, 46, 76, 

78, 359 

81, 84 

. 117 

. 84 

78, 220 

. 148 

84, 360 



V. Papworth 

V. Scott . 

V. Stevens 

V. Thorp 

V. Wight 

V. Williams 

William Watson & Co., 
Willis V. Barron 

«. Childe 

—^ V. His cox 

V. Kibble 

V. Willis 

Willmott V. Barber 



79 
263 
109 
283 
248 

92 
283 
113 
248 
275 
254 



Wilmot V. Pike 
Wilson V. Barnes 

V. Bell 

V. Clapham 

V. Goodman 

V. Heaton 

V. Lord Bury 

V. Maddiaon 

V. Moore 

V. Peake 

V. Turner . 

Wiltshire v. Rabbits 
Winch V. Brutton . 

V. Keeley . 

Winter v. Lord Anson 
Wise, Be 

V. Perpetual Trustee 

Company . 

• V. Wise 

Withers v. Withers 
Wollaston v. Tribe 
Wolmeishansen v. Gullick 
Wolsham v. Stainton 
Wolstonholme, Be 
Wood V. Cox . 76, 77, 

V. Dixie 

t). Downes . 

V. Harman . 

V. Patteson . 

V. Richardson 

V. Stane 

V. Sutcliffe . 

V. Weightman 

Woodburn v. Grant 
Woodford V. Charnley 
Woodhead v. Marriott 
Woodhouselee v. Dalrympl 
Woods V. Axton . 

V. Woods . 

Wood's Ships Woodite Co, Be 
Woolf V. Woolf . 
Woolmore v. Burrows 
Woozatuneesa, In re 
Worcester, Be 
Worley v. Prampton 



85 Wormald, Be 



Page. 

286 

18 

79 

81 

211 

222 

15 

80 

210 

170 

228 

286 

77 

135 

235 

227 

221 
123 

85 

70, 115 

211 

222 

39 
78,82 

60 
267 
236 
226 
173 
289 
149 
241 
284 
52,53 
320 
181 
217 

79 

260 

132, 195 

22 
397 
284 
231 

43 



Ixvui 



TABLE OF CASES 



Worrall v. Harford 
Worssam, Be 
Wren v. Kirton 
Wright V. Carter . 

V. Pearson 

V. Snowe . 

V. Vanderplank 

V, Wright . 

Wrightson, Be 
Wroe V. Seed 
Wyohe, Be . 
Wyman «. Paterson 
Wynne v. Humberton 
— — V. Tempest 



Page. 
213, 217, 220 
197, 267, 268 
. 242 
. 117 
. 19 
132, 184 
114, 121 
. 23 
. 291 
. 161 
253, 285 
. 241 
216, 278 
. 211 



Page, 



Neo V. Ong 



Yeap Cheah 

Gheng Neo 
Yellappa-bin-Basappa v. 

tappabin-Basappa 
Yem V. Edwards . 
Yode V. Cloud 
York V. Brown 
York Buildings Co. 

kenzie 
Young V. Martin . 
Younger v. Welham 
Younghusband v. Gisbome 
Yusuf Ali V. Ayub 
Yynnot v. Simpson 



Man- 



355 

. 299 

. Ill 

140 

. 252 

V. Mao- 

267, 295, 296 
. 77 
. 247 
39, 277 
. 181 
. 73 



Yad Bam v. Umrao Singh . 104 

Yardley v. Holland . 126, 186 

Yarnold v. Moorehouse . . 42 

Yasin Khan v. Muhammad . 318 



Zafaryab v. Bakhtawar . . 402 
Zooloka Bibi v. Syed Zymulab- 

din 4Ca 

Zulekhabai v. Gbrahim . . 26 



TABLE OF ACTS. 



XIX of 1841, 3. 7 

I of 1845, s. 21 . . 

VII of 1849 

II of 1850 
XXII of 1850 . . 
XXXI of 1854, s. 17 
XXI of 1855, S3. 2, 3 
XL of 1858, 3. 24 

VIII of 1859, s. 260 
XXI of 1860 .. 

, S3. 1, 2, 3 

. 3. 4 

XLV of 1860, 33. 61, 62 

. ss. 126, 127, 169 

, 33. 405 — 409 



XX of 1863 



X of 1865 



-, 8. 14 

s. 4 .. 

3.46 

3. 101 

H. 105 

8. 128 

83. 187, 190 

3. 229 

S3. 316, 326 



XXVII of 1866 .. 

XXVIII of 1866 

. 8.2 

, 8. 3 

, 8.4 

, 3. 5 

, 3. 32 

, 8. 33 

, s. 34 

, s. 36 

, 8. 37 

, s. 39 

. s. 43 



Page. 

.. 255 

.. 103 

255, 256 

.. 255 

.. 391 

.. 234 

.. 228 

.. 255 

.. 100 

.. 358 

.. 371 

.. 372 

.. 129 

.. 130 

13, 188 

14, 248, 368, 370 

• . . 291 

49, 128, 129, 356 

.. 328 

127, 128 

37 

354, 377 

.. 137 

346 

.. 124 

.. 126 

13, 14, 839 

15 

.. 229 

.. 230 

.. 231 

.. 167 

167, 232 

.. 232 

.. 239 

.. 235 

.. 214 

.. 212 

223 



Ixx 



TABLE OF ACTS 



I of 1869, S3. 17, 20 
XXI of 1870 . . 

, S.2 

IX of 1871, s. 10 

I of 1872, ss. 107, 108 

. 3. 110 . . 

, s. 116 . . 

IX of 1872, s. 11 
, s. 12 



98, 
127, 



ss. 15, 22 

ss. 16—18, 20, 21 

s. 23 

ss. 26 — 28 
ss. 57, 58 
s. 157 



II of 1874, S3. 50 

III of 1874, 33. 2, 4 
XIII of 1874 . . 
XI of 1876 .. 

I of 1877 

s. 2, ill. (5) 
=.10 . . 
3. 11 . . 
s. 12, el. (o) 
3.27 .. 
s. 42 . . 
s. 54 .. 



X of 1877 * .. 

, S3. 437, 439, 539 . . 

XV of 1877, s. 10 

, arts. 98, 100,'133, 134 

XVIII of 1879 .. 
I of 1880 3. 1 . . 

, s.2 .. 

, s. 3 . . 

, u. 4 . . . . 

, 3. 5 . . 



V of 1881 



, s. 117 
ss. 135, 145 
s. 1.54 



II of 1882, ri. 3 , 

. 3. 4 . 

, s. 5 . 

-, s. 6 . 

, 3. 7 . 

, 3. 8 . 

-, s. 9 , 

, s. 10 



Page. 

377 

37,49 

346 

304 

181 

100 

100 

131 

.. 127 

113, 276 

.. 276 

31,44 

35 

46 

.. 319 

.. 255 

44, 128 

.. 228 

.. 134 

13, 15 

.. 114 

141 

159 

276 

.. 346 

.. 151 

149, 249, 293 

13 

13 

13 

13 

.. 188 

356 

.. 371 

.. 371 

.. 372 

.. 372 

.. 124 

.. 227 

.. 126 

.. 346 

15 

. . 31, 44 

. . 47, 49 

47 

.. 127 

23 

.. 131 

136 



123. 



TABLE OF ACTS 



Isxi 



II of 1882 a. 11 . . 
s. 12 .. 
». 13 . . 
s. 14 . . 
s. 15 . . 
s. 16 . . 

B. 17 . . 

s. 18 . . 
«. 19 . . 
s. 20 . . 

8. 21 . . 

s. 22 . . 
B. 23 . . 

a. 24 . . 

». 25 . . 
s. 26 . . 
B. 27 . . 
a. 28 . . 
8. 30 . . 
o. 31 . . 
s. 32 . . 
s. 33 . . 
s: 34 . . 
3. 35 . . 
B. 36 . . 
B. 37 . . 
H. 38 . . 
a. 39 . . 
s. 40 . . 
s. 41 . . 
s. 42 . . 
B. 43 . . 
8. 45 . . 
8. 46 . . 
B. 47 . . 
8. 48 . . 
o. 49 . . 
8. 50 . . 
s. 51 . . 
8. 52 . . 
B. 54 . . 
s. 55 . . 
8. 56 . . 
». 57 . . 
s. 59.. 
B. 61 . . 
s. 62 . . 
8. 63 . . 
B. 64 . . 



155, 



186, 



194, 195, 



Page. 

140 
140 
140 
159 
144 
152 
156 
146 
. 160 
. 167 
. 167 
. 173 
318, 328 
198 
. 199 
199, 200, 204 
210, 211 
213 
214 
215 
216 
222 
223 
224 
225 
229 
230 
231 
232 
36, 232 
234 
228 
237 
239 
240 
246 
248, 
249 
256 
263 
271 
273 
277 
278 
288 
293 
295 
298 
300 



Ixxii 



TABLE OF ACTS 



Page. 



II of 1882, s. 65 , 
B. 66 . 
a. 67 . 
s. 68 . 
s. 69 . 
B. 71 . 

d. 72 . 
a. 73 . 
s. 76 . 
3.77 . 
3. 78 

e. 84 . 

3.88 . 

3.89 . 



IV of 1882 



a. 7 .. 

ss. 10, 11 
3. 14 . . 
s. 18 . . 
3. 42 . . 
s. 43 . . 
3. 53 . . 
s. 123 
3.126 
3.138 



VI of 1890 



3. 
3.40 



VIII of 1890 



s. 20 
». 3 (39) 



X of 1897, 

II of 1899, Art. 62 (e) 

, 3. 2 

, 3. 4 

, s. 37 

KVIofl907, a. 17(6) 
V of 1908 



V of 1908: 



33. 15, 16 

s. 66 . . 
3. 92 . . 
3. 93 . . 
8. 120 

0. 1, rr. 1-3 
0. 5, r. 25 
0. 23, r. 1 
0. 31, r. 3 
0. 38 
0. 39 





318 




324 




324 


327, 


328 




321 


240, 


339 




337 




338 




339 




340 


67,71, 


340 




107 




110 




114 




234 




23 




127 




38 


. . 35, 37 




36 




67 




23 


. . 57, 61 




48 




391 




55 




354 




373 




372 




233 




116 




127 




335 




135 




66 




66 




48 


, 15, 134 


141 




24 


, . 


100 


13, 241 


368 




368 




25 




345 




27 




238 


13, 


144 




187 




249 



TABLE OF ACTS 



Ixxiii 



IX of 1908 



s 



10 

s. 18 

3.21 

Soh. 



2, 



III of 1909, s. 9 

. s. 44 

, a. 52 

II of 1913, o. 8 

, a. 10 

, 3. 19 

III of 1913 
I of 1916 

XV of 1916 
XXI of 1917 
(Bengal) IX 



art. 
-art. 



98 
133-4 



of 



I of 



1879 
1905 



(Bombay) 

(Madras) II of 1886 
I of 1902 
I of 1914 

(N. W. P.) Ill of 1899 

(Punjab) II of 1903 



Page. 
13, 309 
13, 191, 266, 309 
309 
247 
309 
309 



66 
135 
372 
372 
256 
2S6 
167 

33 
163 
283 
287 

15 
283 

33 
283 
283 



233, 



TABLE OF STATUTES. 



1 Ed. VI, 0. 14 

27 Hen. VIII. c. 10 

13 Bliz., 0. 5 

27 Eliz., 0. 4 

43 Eliz., 0. 4 

69 Geo. n, c. 36 

39 & 40 Geo. Ill, u. 98 

55 Geo. Ill, u. 160 

2 & 3 Will. IV, c. 115 

3 & 4 Will. IV, c. 27, s. 25 
5 & 6 Will. IV. 0. 76 

8 & 9 Viot., u. 59, ri. 2 
11 & 12 Vict., c. 21 

, s. 23 

22 & 23 Vict., c. 35, s. 30 



24 & 25 Vict., 


K. 96, ss. 80, 86 




<;. 104 

u. 110, ss. 12. 13 


32 & 33 Vict., 


33 Vict.,, u. 14 


■ • . • 


44 & 45 Vict., 


u. 41, ». 30 . . 






45 & 46 Vict., 


c. 88, s. 64 . . 




c. 50 
c. 75 
c. 71. s. 4 . . 


' 


47 & 48 Vict., 


51 & 52 Vict., 


c. 42 


53 & 54 Vict., 


c. 19 


55 & 56 Vict., 


e. 58. s. 1 . . 


56 & 57 Vict., 


c. 21. 8. 2 .. 




c. 63. s. 13 . . 

a 1Q 




. s. 45 . . 



7 Ed. VII. c. 47 



Page. 

.. 354 

. . 6, 354 

66, 57, 90 

56, 67, 67 

.. 356 

355. 368 

.. 127 

.. 357 

.. 357 

.. 191 

127 

357 

66 

.. 283 

.. 223 

183 

25 

247 

, . 129 

136. 245 

.. 233 

.. 229 

127, 133 

44,134 

160, 212 

355. 356 

.. 371 

35 

57 
229. 230 
145. 227 
.. 277 
.. 340 



LECTURE I. 

ORIGIN OF TRUSTS IN ENGLAND. 



Origin of Trusts in England — Tenures — Feudal system — Sub-inf eudation — 
Estates of freehold — Alienation of estates — Gifts to religious houses — 
Mortmain — Uses — Statute of Uses — Object of Statute — Ltgal and 
equitable estates — Trusts among Hindus — Krishnaramiui Dasi's case — 
Tagore case — Trusts for creditors — Family religious trusts — Legislation in 
India — Arrangement of subject — Definition of trust — Must be confidence 

— Merger • — Definition of terms - — Kinds of trust — Simple trust — Special 
trust — Ministerial and discretionary trust — Mixture of trust and power — 
Lawful and unlawful trusts — Public and private trusts — Executed and 
executory trusts — Austen v. Taylor — Jervoise v. The Duke of Northum- 
berland — Coape V. Arnold — Executory trusts in marriage articles and 
wills — Distinction between them — Marriage articles — Blackburn v. Stables 

— Jervoise v. The Duke of Northumberland — Will —Cy pris — Intention — 
General Rules — Subject-matter of trust — Trusts against policy of law — 
Title of honor — Trusts of immoveable property without the jurisdiction of 
a Court — Penn v. Lord Baltimore — Act V of 1908, ss. 15, 16 — High 
Courts' Charter — Letters Patent — Suits for land — Foundation of juris- 
diction — Court of Equity acts in personam and not in rem — Land may be in 
a foreign country — Aiigus v. Angus — Lord Cranstown v. Johnston ^ Privity 

— Foundation of jurisdiction — Injunction restraining proceeding by other 
Courts — Trusts of moveable property abroad — Object must be lawful — 
(Jeneral rule for ascertaining whether trust lawful — Indian Contract Act, 
g. 23 — Trusts contrary to policy of law or founded upon illegal contract 
yoid — Assignment of half pay — Trusts for future illegitimate children — 
Trust for illegitimate children in being, or en ventre sa mire — Trust forbidden 
by law — Trusts postponing enjoyment of property or restraining aUenatiou 

Accumulation — Perpetuities among Hindus — Restraint on aUenatiou — 

Condition restraining alienation after absolute gift — Insolvency • — Trust to 
cease on bankruptcy or insolvency — Trust to cease on happening of parti- 
cular event — Clauses of forfeiture construed strictly — Trust for immoral 
purposes — Failure of trust — Illegal purpose failing — Must be a cestui que 
trust — Trust partly lawful and partly unlawful — Trust of immoveable 
property in foreign country. 

The Law of Trusts as administered in India closely resembles 
the Englisli law in the general principles applied, 
although the system upon which it is administered is °"g',"?f 
different ; I propose, therefore, in the first place, to describe England 
the origin and growth of trusts in England. In order to 
do this, it is necessary to go back to the time of the Norman 
conquest, and to consider shortly the tenures by which 
lands in England are held. At the time of the conquest, ^""'■eS' 
the greater part of the land was confiscated, and was granted' 
by the conqueror to his followers according to what is known as 

A. LT 1 



2 FEUDAL SYSTEM. [LeC. I. 

the feudal system. The lands were held by the grantees from the 

sovereign, upon condition that they should, when called 
system upon, perform certain military duties. The sovereign 

was considered to be the owner of the granted lands, and 
was called the lord paramount, while the services to be rendered 
were regarded as incident, or annexed to the ownership of the 
land ; in fact, the rent to be paid for it. (a) At first the interest 
of the grantee in the lands granted did not extend beyond his 
own life. In course of time it gradually improved in stability and 
acquired an hereditary character, so much so, that the grantee, 
considering himself as substantially the owner, began to imitate 
the example of his sovereign by carving out portions of his 
land, to be held of himself by some other person, on terms and 

conditions similar to those of the original grant. This 
dation ^"' method of creating estates in the granted land was termed 

sub-infeudation. A continued chain of successive depen- 
dencies was thus established, connecting each stipendiary or 
vassal with his immediate superior or lord. (6) The grant, as 
we have seen, did not originally extend beyond the life of the 
first vassal ; but, in process of time, grants were made to a man 
and his sons, and then to a man and his heirs. This method of 
holding lands gave rise to the fundamental maxim, which still 
prevails as regards land in England, that all land belonging to 
any subject in the realm is holden of some superior, and either 
mediately or immediately of the sovereign. And as all lands 
were holden, they were called tenements ; the possessors, tenants ; 
and the manner of their possession, a tenure, (c) There is no 
such thing, according to the English law, as the absolute owner- 
ship of land. All that a subject can have is an estate in the 
land. 

The only estates with which we need concern ourselves, are 

those which are called freehold estates because, they were 

^eehold" *^® '^^^J estates which a free man would hold, — namely, 

estates for life, in tail, and in fee-simple. If land was 

granted to a man simply without more, that gave him an estate 

for his life only, and on his death the land escheated to the 

grantor. If land was granted to a man and the heirs of his body, 

he was said to have an estate tail, which descended on his death 

to his lawful issue, children, grandchildren, and more remote 

descendants, so long as his posterity endured. If the first owner, 

or any descendant who had succeeded to the estate, died without 

children, the estate escheated to the grantor or his heir. If land 

was granted to a man and his heirs, he had an estate in fee-simple. 

This estate descended on his death to his heirs. If he died 



(a) Waiiams on Real Property, 2. (6) 1 Bl. Com., 175. 

(c) Jbid., 186. 



Lee. I.] ALIENATION OF ESTATES. 3 

without children the estate went to his collateral relations, and 
only escheated on the failure of all persons who could possibly 
claim through him. (a) All these estates were originally inalienable 
either during the life-time of the holder, unless with the consent 
of the lord, or by will. It would be foreign to the purpose of 
these lectures to trace the steps by which the right of alienation 
was acquired, but I will endeavour shortly to explain the means 
used for the transfer of an estate from one person to another. 

The most ancient form of conveyance, was a feoffment with 
livery of seisin. The feudal doctrine that all estates in 
land are holden of some lord, necessarily imphes that all g/e^s'J^tes" 
lands must always have some feudal holder or tenant. 
This feudal tenant is the freeholder, or holder of the freehold. He 
has the feudal possession, called the seisin ; and so long as he is 
seised, nobody else can be. The freehold is said to be in him, and 
until it is taken out of him and given to some other, the land itself 
is regarded as in his custody or possession. A feoffment with livery 
of seisin, was the gift of an estate in the land, accompanied with 
livery ,^ — that is, dehvery of the seisin or feudal possession. At 
the time of the gift, the nature of the estate to be taken by 
the person to whom it was given, or feoffee, was marked out or 
limited. (6) Before the reign of Henry VIII, a simple gift of lands to 
a man and his heirs, accompanied by livery of seisin, was all that 
was necessary to convey to that person an estate in fee-simple in 
the lands. The Courts of Law did not deem any consideration 
necessary ; but if a man voluntarily gave lands to another, and 
put him in possession of them, they held the gift to be complete 
and irrevocable, just as a gift of money or goods, made without any 
consideration, is, and has ever been, quite beyond the power of 
the giver to retract, if accompanied by deUvery of possession. In 
law, therefore, the person to whom a gift of lands was made and 
seisin delivered, was considered thenceforth to be the true owner 
of the lands(c), and his estate was known as the legal estate. We 
have now to consider how another class of estates, known to English 
law as equitable estates, arose. ., 

After the power of alienation had been acquired, it became a 
common thing for the grantees of estates to convey them 
to religious houses. The members of these houses were Gifts to 
unable, by reason of their profession, to perform the hoSes"^ 
military services required by the feudal law ; they obtained 
great quantities of land, and an undue proportion of wealth and 
power. As religious houses fell under the legal description of 
corporations, who possess the character of perpetuity, the lord 

(a) See Williams on Real Property, 136. 
Chaps. I, II, III. (c) Ibid., 151. 

(6) See Williams on Real Property, 



Uses. 



i MORTMAIN. [LeC. I. 

was deprived of the benefits he derived from escheats. Lands 
belonging to such bodies were consequently said to be in 
° ^'"' mortud manu, or in mortmain, because they produced 
none of the advantages to the feudal lords, which lands held by 
individuals did. In order to check conveyances to reUgious houses 
and corporations, various Statutes, called the Statutes of Mortmain 
were passed, prohibiting corporations from purchasing land, unless 
a license in mortmain was procured from the lord. In order to 
evade these Statutes, the following device was resorted to by the 
ecclesiastical bodies. The grant, instead of being made direct to- 
the religious house, was made to some person to the use of the 
religious house. A gift of this kind conferred no estate or interest 
whatever in contemplation of law on those whose benefit was 
designed, for the principle of feudal tenure was, to look no further 
than to the actual and ostensible tenant, and to consider him 
alone as the proprietor, (a) The use, therefore, declared upon 
such a gift, being in the view of the ordinary Courts 
of Justice a nonentity, escaped the operation of the 
Statutes of Mortmain. (6) " The laity were not long behind in 
resorting to this contrivance as regards both land and chattels, 
to enable them to defeat creditors of their executions and for 
other fraudulent purposes, firequently, it seems, selecting some 
person as their fteoffee, who from his station and power might aid 
them in setting the law at defiance. Subsequently, conveyances 
to uses were put in practice by the laity for less objectionable pur- 
poses. During the civil wars occasioned by the claims of the rival 
Houses of York and Lancaster, every person who could be accused 
of having sided with the defeated party, was liable to attainder,, 
and by consequence, to the confiscation of his estates. To avoid 
this hazard, secret conveyances to uses, or upon special trusts, 
appear to have been resorted to by persons of every rank and con- 
dition. In the reign of Edward IV, at which time this mode of 
conveyance had become fully established, the Judges expressly 
held, that a use was not forfeitable by attainder ; this would of 
course confirm the practice, "(c) When a feoffment was made to 
uses in this way, the legal estate was in the feoffee. He filled the 
pbssession, did the feudal duties, and was, in the eye of the law, 
the tenant of the fee. The person to whose use he was seised, 
called by the law writers the cestui que use, had the beneficial pro- 
perty in the lands, had a right to the profits, and a right to call 
upon the feoffee to convey the estate to him and to defend it against 
strangers. This right at first depended upon the conscience of the 
feoffee ; if he withheld the profits f tom the cestui que use, or refused 
to convey the estate as he directed, the cestui que use was without 



(a) 1 Cru. Dig., 402. (6) 1 Bl, Com., 357. 

(c) 1 Spenoe's Eq. Jur., 440. 



Lee. I.] USES. 6 

remedy. To redress this grievance, the writ of subpcena was 
devised, or rather adopted from the Common Law Courts, by the 
clerical Chancellors, to oblige the feoffee to attend in Court and 
disclose his trust ; and then the Court compelled him to execute it. 
This writ is said to have been first issued by John Waltham, Bishop 
of Salisbury, who was Lord Keeper in the reign of Richard the 
Second. " No sooner was this protection extended than half the 
lands in the kingdom became vested in feoffees to uses. Thus, 
in the words of an old counsellor, the parents of the trust were 
Fraud and Fear, and a Court of Conscience was the Nurse." (a) 
" The power assumed by the clerical Chancellors in controlling the 
maxims and principles of the Common Law, cannot be considered 
as short of legislative ; for not only, in virtue of a law created for 
private convenience and independent of the Common Law, was the 
person legally entitled deprived of all the beneficial incidents of 
property ; but a distinct title to the enjoyment was introduced, 
not only unknown to, but at first repudiated by, the law : the legal 
title indeed was not directly affected, yet the legal owner was 
compelled to exercise his legal rights, so as only to be subservient 
to the protection and enjoyment of this equitable interest : although 
by this means, as regarded the real owner of the estate, the legal 
rights of third persons, including the Crown, were defeated, which 
indeed was one of the palpable objects for which trusts were 
introduced. "(6) Uses were not considered as issuing out of or 
annexed to the land, as a rent, a condition or a right of common, 
but as a trust reposed in the feoffee, that he should dispose of the 
lands at the discretion of the cestui que use, permit him to receive 
the rents, and in all other respects have the beneficial property of 
the lands. Thus, between the feoffee and cestui qui use, there was 
a confidence in the person and privity in estate, (c) But this was 
only as between the feoffee and the cestui que use. To all other 
persons the feoffee was as much the real owner of the fee as if he 
did not hold it to the use of another. He performed the feudal 
duties, his wife was entitled to dower, his infant heir was in ward- 
ship to the lord, and upon attainder the estate was forfeited. (<i) 
The doctrine of uses, as regulated and settled by the Court of 
■Chancery, was so applied that it became productive of serious 
grievances. Persons who had a claim to the lands could not find 
out the legal tenant against whom it was necessary to proceed. 
Husbands were deprived of their curtesy, and widows of their 
dower, creditors were defrauded, purchasers for valuable con- 
sideration were frequently defeated, and the king and other 
feudal lords were deprived of their tenures, and other incon- 
veniences attended the secrecy observed in making conveyances to 

[a) Lewiu's Introduction, 1. Burgess v. Wheate, 1 W. Bl., 123. 

(6) .Spenee's Eq. Jur., 436. (d) Co. Lit., 271. 

(c) Ohudkigh's case, 1 Rep., 120 ; 



6 STATUTE OP USES. [LcC. I. 

uses, by which the beneficial interest belonged to one person and 
the legal estate to another, (a) 

To remedy these inconveniences, the Statute of Uses (6) was 
Statut f passed by which the possession was divested out of the 

Uses. ' persons seised to the use, and transferred to the cestui que 
use. By this Statute it was enacted, that where any 
person or persons shall stand seised of any lands or other here- 
ditaments to the use, confidence, or trust of any other person or 
persons, the persons that have any such use, confidence, or trust 
(by which was meant the persons beneficially entitled) shall be 
deemed in lawful seisin and possession of the same lands and 
hereditaments for such estates as they have in the use, trust, or 
confidence. 

The modern doctrine of uses, as distinguished from trusts,, 
was introduced by this Statute. Uses, therefore, in the modem 
acceptation of the word, are such limitations of lands and other 
hereditaments as are executed by the Statute and confer on the 
beneficial owner the legal estate ; and trusts are similar to what 
uses were at Common Law before the passing of the Statute. Uses, 
under the Statute, were subject to the jurisdiction of the Courts 
of Common Law, and trusts to that of the Courts of Chancery or 
Equity, (c) 

The object of this Statute was to aboUsh the jurisdiction of 
the Court of Chancery over landed estates by giving actual 
SteUrte possession at law to every person beneficially entitled in 

equity. But the Court of Chancery recovered its power in 
the following manner : Soon after the passing of the Statute of 
Uses, a doctrine was laid down, that there could not be a use upon a 
use. For instance, suppose a feoffment had been made to A and his 
heirs, to the use of B and his heirs, to the use of G and his heirs,, 
the doctrine was, that the use to C and his heirs was a use upon a 
use, and was, therefore, not affected by the Statute of Uses, which 
could only execute or operate on the use to A and his heirs. Sa 
that B, and not C, became entitled under such a feoffment to an 
estate in fee-simple in the lands comprised in the feoffment. This 
gave the Court of Chancery an opportunity for interfering. It 
was manifestly inequitable that C, the party to whom the use was 
last declared, should be deprived of the estate which was intended 
solely for his benefit ; the Courts of Chancery, therefore, interposed 
on his behalf, and constrained the party to whom the law had given 
the estate, to hold in trust for him to whom the use was last declared. 
So that whenever it is wished to vest a freehold estate in one person 



(o) See Watkins on Conveyancing, (6) 27 Hen. VIII, u. 10. 
287 ; Saudars on Uses, c. 1, s. 6. (c) Watkins on Conveyancing, 288- 



Lee. I.] LEGAL AND EQUITABLE ESTATES. 7 

as trustee for another, the conveyance is made unto the trustee or 
some other person and his heirs, to the use of the trustee and his 
heirs, in trust for the party intended to be benefited (called cestui 
que trust) and his heirs. An estate in fee-simple is thus vested in 
the trustee by force of the Statute of Uses, and the entire beneficial 
interest is given over to the cestui que trust by the Court of Chancery. 
The estate in fee-simple which is vested in the trustee is called the 
legal estate, being an estate to which the trustee is entitled only in 
the contemplation of a Court of Law, as distinguished from equity. 
The interest of the cestui que trust is called an equitable 
estate, being an estate to which he is entitled only in the ^^^al and 
contemplation of the Court of Chancery which administers estates. 
equity, (a) The cestui que trust is the beneficial owner of 
the property. The trustee, by virtue of his legal estate, has the 
right and power to receive the rents and profits ; but the cestui que 
trust is able, by virtue of his estate, in equity, at any time, to oblige 
his trustee to come to an account and hand over the whole of the 
proceeds. (6) The general idea of a use or trust answered more to 
the fdeicommissum than the usus fructus of the civil law, which 
latter was the temporary right of using a thing without having 
the ultimate property or fuU dominion of the substance ; but the 
fidei commissum, which usually was created by wiU, was the disposal 
of an inheritance to one, in confidence, that he should convey it, 
or dispose of the profits, at the will of another. The right of the 
latter was originally considered in the Roman law as jus precarium, 
— that is, one for which the remedy was only by entreaty or request ; 
but by subsequent institution, it acquired a different character, — 
it hecRme jus fiduciarium, and entitled to a remedy from a Court 
of Justice, and it was the business of a particular magistrate, 
the ■praetor fidei commissar ius, to enforce the observance of these 
confidences. 

We see, therefore, that, according to the English law, there 
may be two persons holding different estates in the same property. 
Both are entitled to convey their estates, both are entitled to the 
rents and profits : one, the legal owner, to receive them ; the other, 
the equitable owner, to enjoy them. This concurrent existence of 
two systems of jurisprudence is known, I believe, only to the English 
law, and led to doubts as to whether trusts could be created 
by Hindus. " The Hindu law," said Peacock, C. J.(c), J^^^^ 
" so far as I am acquainted with it, makes no provision for Hindus, 
trusts. There is nothing in the Hindu law at all analogous 
either to trusts of the English law or to the fidei commissa of the 



(o) Williams on Real Property, 157. R., O. C, 36. 
(6) Kumara Asima Krishna Deb v. (c) 4 B. L. R., 0. C., 231. 

Kumara Kumara Krishna Deb, 2 B. L. 



8 KRISHNARAMINl's CASE. [LCC. I. 

Eoman law, which were probably the origin of trusts in the English 
. law." In Sm. Krishnaramini Dasi v. Aimnda Krishna 

nJni "dS's Bose{a), Markby, J., quoting the above case decided, 
case. that trusts could not be created by Hindus. His Lordship 

said that there was not the least ground for suppos- 
ing that anything like the English law of trusts existed in 
Hindu law, — that is to say, a system according to which property 
subject to a trust has to be viewed under a double" aspect, — 
that of the trustee on the one hand, who is declared by law to 
be the absolute and uncontrolled owner ; and the cestui que trust 
on the other, who has a right in equity to interfere in the 
ownership and compel the trustee to abandon all or nearly 
all his rights in his (the cestui que trust's) favour. " There is 
not," continued his Lordship, " a trace of it in any passage of 
any work on Hindu law that I have seen. There is not an 
indication of it in the habits of the people, and so far from the 
English system of trusts resting on principles of jurisprudence, 
which, though dormant, may be considered as universally present, 
it is undoubtedly one of the most anomalous institutions in the 
whole history of law — one that could never have possibly been 
conceived d priori, or worked out £rom any general principle, and 
is distinctly the product of our own time." On appeal, however(6),- 
Peacock, C. J., explained the passage from his judgment cited above, 
saying, " I did not say, nor did I intend to say, that a devise upon 
trust for a purpose which might be legally carried into effect without 
the intervention of trustees would necessarily be void. There are 
many cases in which trusts have been enforced against Hindus 
both by the Courts in this country and by Her Majesty in Council 
upon appeal." Macphersdn, J., said in p. 284 : — " I think that 
for various reasons, — because there is nothing in Hindu law which 
is repugnant to, or inconsistent with, the idea of trusts, — ^because 
trusts are not unknown to the Hindu law, — and because trusts, 
as among Hindus, have been recognized and administered for the 
last century almost, by this Court and the late Supreme Coiui;,— 
we are bound so to recognize trusts and to give effect to them. 
I think that, both by Hindu law, and the practice which has always 
prevailed in our Courts, a Hindu may legally deal with his property 
so as to create a trust — a relation in many respects similar to, 
although not necessarily identical with, that known in English 
law as the relation of trustee and cestui que trust. I concede that 
trusts, in the strict sense in which an English lawyer uses the 
term, — that is to say, trusts, to the existence of which a ' legal ' 
estate and an ' equitable ' estate, wholly separate from and inde- 
pendent of each other, are necessary, were unknown to the old 
Hindu law. There being no distinction in Hindu law between 
legal and equitable estates, it was, of course, impossible that there 



(a) 4 B. L. R, 0. C, 231. (b) 4 B. L. R., O. C, 278. 



Lee. I.] KEISHNARAMINl's CASE. 9 

should be anything corresponding to the two estates which are so 
well known to the English law ; nevertheless, trusts, in the wider 
sense of the term, were by no means unknown in the tenets of Hindu 
law. I do not speak of the various personal ordinary trusts, such 
as deposits and bailments, which are expressly recognized and 
dealt with by all the writers on Hindu law. The existence of such 
trusts does not affect the present question, which relates solely 
to special trusts, where the person to whom property is given is 
bound to use it for the benefit of another, or to apply it in a parti- 
cular manner indicated, and not necessarily for his own advantage. 
But in the case of endowments for religious and charitable purposes, 
and gifts to idols, there is no doubt that trusts have always been 
known. It is said, that in a gift to an idol there is no trust, and 
that there is an actual gift to the idol. It may be so in words ; 
but, by whatever name it is called, it is a mere setting apart of 
property which is to be held and used by the manager for the time 
being, whether he be a priest or whoever he may be, for the purpose, 
in the first instance, of providing for the worship of the idol, or of 
carrying out the religious or charitable objects of the original 
donor. Practically, if a trust were not recognized in such cases by 
Hindu law, no endowment or gift to an idol, or for rehgious or 
charitable purposes, could have any permanent effect ; while, as 
a matter of fact, we -see such endowments are very carefully pre- 
served and are continued from generation to generation. But 
granting, for the sake of argument, that trusts are not expressly 
recognized by the old Hindu law, that is not, in my opinion, any 
reason why we should now conclude that they are invaUd. There 
is nothing in Hindu law which forbids trusts, or is in any way 
repugnant to them or inconsistent with their existence. The 
Hindu law system is not, and does not profess to be, exhaustive ; 
on the contrary, it is a system in which new customs and new 
propositions, not repugnant to the old law, may be engrafted upon 
it from time to time, according to circumstances and the progress 
of society. Fiduciary relations extend as the transactions and 
intercourse between men extend. In all probability, trusts had, 
by degrees, sprung into existence before we find any record of 
them in our reports, just as I believe the custom of making wills, 
although it may be of no very ancient origin, prevailed among 
Hindus quite independently of any decisions in the Courts, or any 
intervention of English lawyers. The Supreme Court was called 
on to grant, and did grant, probate of the will of a Hindu within a 
few months after the Court was instituted ; and we find the earliest 
legislation recognizing the wills of Hindus. There is not neces- 
sarily anything anomalous or unnatural in the constitution of 
trusts. The general position of trusts in English law with these 
two absolutely separate estates, the legal and the equitable, may 
be somewhat anomalous. But this is the result of the peculiar 
procedure in England^ where the Court of Chancery has always 



10 TAGORE CASE. [LCC. I. 

been distinct from the Courts of Common Law, and equitable 
rights are kept wholly apart from legal. The peculiarity of the 
English law of trusts arises out of specialities of procedure. But 
questions of procedure cannot affect the question, whether trusts 
are to exist, or whether Courts are to give effect to them. I cannot 
see that the fact that this Court is a Court of Equity as well as of 
law, and that our procedure differs from that of the old Supreme 
Court, creates any difficulty in giving effect to, or administering, 
trusts, or in any way affects the question of substantive law as to 
whether trusts can or cannot be created." In Ganendra Mohan 
Tagore case ^'"^ore V. Upendra Mohan Tagore{a), Phear, J., said : — 
" I confess, the broad assertion that trusts are unknown to 
Hindu law took me somewhat by surprise. There is, probably, 
no country in the world where fiduciary relations exhibit them- 
selves so extensively and in such varied forms as in India, and 
possession of dominion over property, coupled with the obligation 
to use it, either wholly or partially, for the benefit of others than 
the possessor is, I imagine, familiar to every Hindu. I need only 
point to the cases of the mother acting as guardian of her infant 
chUd, the Jcarta of a foint famUy managing on behalf of minor or 
absent members, and the gomasta buying, selling and trading in 
his own name for the benefit of an unseen principal. If it be said 
that in these instances and others which might be mentioned, the 
guardian, manager or gomasta is only an agent, and differs from 
a trustee, in the strictest sense of the word, in this, namely, that 
his powers are referable to the authority of the person for whose 
benefit he acts, and not to any sort of ownership in himself, I 
woidd add that, in my opinion, this circumstance does not materi- 
ally affect the essence of the trust. No doubt, in this country, 
where Courts of Justice are not distinguished hy their functions 
into Courts of Law and Courts of Equity, and where law and 
equity are administered by the same tribunal, there is no occasion 
for the creation and maintenance of an equitable estate in property 
as separate from the legal estate. There is, consequently, no such 
thing here as a bare legal estate in one man descendible to heirs, 
side by side, with a beneficial estate of inheritance, or a succession 
of beneficial estates in the same property passing down another 
series of persons. And this, I understand, is all that the Chief 
Justice and Mr. Justice Markby intended to lay down in the two 
judgments to which I have been referred. (6) But I think that 
whether a man accepts property on the terms of giving another 
person a specified benefit out of it, or whether he undertakes to 
manage property on behalf of another, our Courts will, in both 
cases alike, know how to make him discharge the obligation under 

(a) 4 B. L. E., O. C, 134 R., 0. C, U ; and Srimati Krishnara- 

{b) Kumara Asima Krishna Deb v. mini Dasi v. Ananda Krishna Bose^ 
Kumara Kumara Krishna Deb, 2 B. L. 4 B. L. R-TO. C, 231. 



Lee. I.] TAGOEE CASE. 11 

which he comes ; and I do not hesitate to believe that it is in 
entire accordance with the genius of the Hindu law that the^ 
should do so. 

" Although our Courts know nothing of a legal title as dis- 
tinguished from an equitable title, they can, I apprehend, easily 
understand the predicament of property placed under the dominion 
and control of one person, in order that he may deal with and 
manage it for special purposes involving the benefit of others. In 
few words, the non-existence of the English equitable estate does 
not necessitate the non-recognition of a trust. Except, perhaps,, 
in the very rudest state of civilization, trust-ownerships will, most 
certainly, spring into being, and the interests of society require 
that, within certain limits at least, effect should be given to those 
by Courts of Justice." On appeal. Peacock, C. J., referring to his; 
judgment in Kumara Asima Krishna Deb v. Kumara Kumara 
Krishna Deb(a), said : — " Although the Hindu law contains no 
express provision upon the subject of uses or trusts, I see nothing 
contrary to the spirit and principles of the Hindu law in a devisa 
to trustees, giving a beneficial interest to a person to whom it 
might have been given by a simple devise without the intervention 
of trustees . . . It is too late to contend that all gifts or 
alienations upon trust are' void, because the ancient Hindu law 
makes no express mention of them. All that I laid down in the 
case of Asima Krishna Deb v. Kumara Kumara Krishna Deb{b) 
was, that a devise for a purpose which would be void as a condition, 
would be void in the shape of a trust." Finally, on appeal to the 
Privy Council, it was argued that an estate' to be held in trust can 
have no existence by the Hindu law. Their Lordships, however,, 
said : — " The anomalous law which has grown up in England of a 
legal estate which is paramount in one set of Courts, and an equitable 
ownership which is paramount in Courts of Equity, does not 
exist in, and ought not to be introduced into, PQndu law. But 
it is obvious that property, whether moveable or immoveable,, 
must, for many purposes, be vested, more or less absolutely, in 
some person or persons for the benefit of other persons, and trusts 
of various kinds have been recognized and acted on in India in 
many cases. Implied trusts were recognized and established here 
in the case of a benami purchase in Gopee Krist Gosain v. Gunga 
Per sand Gosain{c) ; and in the cases of a provision for charity or 
other beneficent objects, such as the professorship provided for 
by the will under consideration, where no estate is conferred upon 
beneficiaries, and their interest is in the proceeds of the property 
(to which no objection has been raised), the creation of a trust is- 
practically necessary. If the intended effect of the argument upon 



(a) 2 B. L. R., 0. C, 36. [b) 2 B. L. E., 0. C, 11. 

(c) 6 Moo. I. A., 53. 



12 TRUSTS FOE CREDITORS. [LCC. I. 

this point was to bring distinctly under the notice of their Lordships 
the contention that, under the guise of an unnecessary trust of 
inheritance, the testator could not indirectly create beneficiary 
estates of a character unauthorized by law, and which could not 
directly be given without the intervention of the trust, their Lord- 
ships adopt the argument upon the ground that a man cannot be 
allowed to do by indirect means what is forbidden to be done 
directly, and that the trusts can only be sustained to the extent 
and for the purpose of giving effect to those beneficiary interests 
which the law recognizes, and that, after the determination of 
those interests, the beneficial interest in the residue of the property 
remains in the person who, but for the will, would be lawfully 
entitled thereto. Subject to this qualification, their Lordships 
are of opinion that the objection fails." 

Trusts for the benefit of creditors are recognized here as 

Trusts for divesting the owner of the property conveyed of any 

<;reditors. interest therein which can be the subject of execution 

until the trusts have been carried out(a), and there are many 

instances of family religious trusts (6) such as trusts for the 

r^ious support of a family idol and for the erection of temples 

trusts. and bathing ghats, (c) And a trustee who misappropriates 

trust-funds may be compelled to compensate the cestui 

que trust{d). 

These cases show clearly that there is such a law as the law 
of trusts existing in this country, and it is difficult to imagine a 
state of civilization in- which some system of trusts should not 
exist. Without such a system it would be impossible to provide 
for persons under disability, such as infants and lunatics. It 
would be impossible to provide for religious or charitable purposes, 
and for the many instances in which one person obtains control 
over the property of another, without, perhaps, actual force or 
fraud, but under circumstances which make it inequitable that 
he should retain such control. In this course of lectures, I shall 
confine myself to those principles of the law of trusts which must 
be applied equally to all cases in which a person, whether governed 
by English, Hindu, or Muhammadan law, is bound to apply 



(a) Bamanji Manikji v. Naoroji (c) Norton, Part II, p. 456 ; Purappa 

Palanji, I B. H. C. R 233 ; Bapuji Vanalingam Chetti v. Nullasivan Chetti, 

Auditram v. Umedbhai Hathesing, 1 M. H. C. R. 415 ; and Venkatesa 

8 B. H. C. R. A. 0. 245 ; and in re Nayudu v. Shrivan Shatgagopa Swami, 

Dhanjibhai v. Kharsetji Batnagar, 10 7 M. H. C. R. 77 ; Thachersey v. Hur- 

B. H. C. R. 327. bhum, 8 Bom. 432 ; Oirijanund v. 

(6) Juggutmoheenee Dosee v. Sokhee- Sailajanund, 23 Cal. 645 ; Bhuggobuity 

moneeDosee, 10 B. L. R. 19 ; Kumara- v. Ouru Prusonna, 2o Ca\. 112. 
sami V. Subbaroya, 9 Mad. 325 ; (d) Moonshee JBuzzul Ruhim v. 

Shookmoy V. Manohari, 7 Cal. 269; )S7tMm«Aeroo?i*ja«o Bejwm, Suth., F. B.,. 

Surendro v. Doorga Sundery, 19 Cal. 60. 
513 P. C. 



Lee. I.] LEGISLATION IN INDIA. 13 

property over which he has control for the benefit of some other. 
With those portions of the law of trusts which are founded upon 
the distinction between legal and equitable estates, or upon English 
Statutes, I shall not attempt to deal, such, for instance, as questions 
relating to the legal estate taken by the trustee, the devise of trust- 
estates, and escheat. Nor shall I attempt to deal with the class 
of cases relating to powers under settlements, the duties of trustees 
for renewal of leases, and other similar branches of the law which 
are seldom applied in, this country. 

Although trusts are fully recognized in this country, there 
was for a long time very little legislation with regard to 
them. The Penal Code(a) contained(6) provisions for the fnfnd^a**" 
punishment of criminal breach of trust ; the Specific 
Relief Act(c) defined((i) ' trust ' and ' trustee,' and provided(e) 
that a trustee may sue for the possession of property to the 
beneficial interest in which the person for whom he is trustee is 
entitled ; the Civil Procedure Code(/) contained provisions (5") for 
the conduct of suits by and against trustees, executors, and 
administrators, and provisions(A) as to suits relating to public 
charities ; the Limitation Act(ii) provided(y) that no suit against 
an express trustee or his legal representatives or assigns shall be 
barred by any length of time, and contained provisions (A;) for the 
limitation of suits to make good loss caused by the breach of trust 
of a person deceased, for contribution against the estate of a 
person deceased, against the purchaser of moveable property from 
a trustee, and against the purchaser of land from a trustee. 
With these exceptions the Indian Statute-Book was silent on the 
subject so far as regards the bulk of the population ; for the 
Statute of Frauds, ss. 7 to 11, relating to declarations of trust, 
resulting trusts, transfer of trusts, and to judgments of cestui 
que trusts, was in force only in the Presidency Towns. (Z) The 

(a) Act XLV of 1860. Following Rochefoucauld v. Boustead 

(b) Ss. 405^09. (1897), 1 C!h. 196, the learned Judges in 

(c) I of 1877. that case held that the Statute was so 

(d) S. 3. faronly a rule of procedure and as such 

(e) S. 10, Expl. 1. was entirely superseded by the Indian 
(/) Act X of 1877 (now Act V of Evidence Act of 1872. In this view, 

1908). therefore, these sections have ceased to 

(g) Ss. 437, 439 (now Or. 31, rr. 1, 3). be in force in any part of India. But 

(h) S. 539 (now s. 92). it is yet to be considered, whether 

(i) XVof 1877 (now Act IX of 1908). within the presidency-town of Calcutta, 

(j) S. 10. the old order of things does not 

{k) Sohed. ii. Arts. 98, 100, 133, 134. still continue. The Indian Trusts Act 

(l) Is THE Statute still in force (s. 2), declares the repeal "in the 

IN India ? The Indian Trusts Act territories to which this Act for the time 

(1882), repeals the Statute. Id Sir being extends " and the Act has not 

Dinshaw Manehji Petit v. Sir Jamsetji yet been extended to Bengal. If the 

Jijibai, 33 Bom. 509, Davar, J., Indian Evidence Act has entirely 

thought this repeal was wholesale, both superseded it, such supercession is not 

as regards Public and Private Trusts. mentioned in the schedule of repealed 



14 



ARRANGEMENT OF SUBJECT. 



[Lec I. 



Arrange 
ment of 
subject. 



provisions of Acts XXVII and XXVIII of 1866, the Trustee 
Relief Acts, had been applied only in cases where the parties were 
European British subjects, as the Acts themselves state that 
they shall only be extended to cases to which English law is 
applicable, though it was some years later decided in Bombay, 
by West, J., in the case of In re Kahandas Narrandas{a), that 
these provisions were applicable between Hindus. The object 
of the proceedings was to obtain the appointment of a new trustee 
to a charity under s. 35 of Act XXVII of 1866. It was admitted 
that this could be done by the more expensive process of a regular 
suit, and it was contended that the expression " cases to which 
English law is applicable " applies to all cases in which the princi- 
ples of English law have to be referred to, and that as the adminis- 
tration of trusts in this country is governed by the rules of the 
English Courts of Chancery, the Act applied to the law to be followed, 
not merely to cases where the parties are English. West, J., 
granted the application, considering that English law was applicable 
if the principles recognized by the English Equity Courts were ap- 
plicable. A year later, the same Judge held that the Statute of 
Frauds was an integral part of the English law introduced in the 
Presidency-town of Bombay and as such the provision applied to 
Parsis.(6) 

In the year 1879, a bUl codifying the law of Private Trusts 
was laid before the Indian Law Commission. The object 
of that bill was to codify the law relating to trusts in the 
wider sense which I have described. It saved the rules 
of Mahomedan law as to wicqf, and it left untouched 
religious and charitable endowments established by Hindus and 
Buddhists as being matters in which the Legislature could not 
usefully interfere further or otherwise than has been done by 
Act XX of 1863. This bill became law in 1882, under the title, 
the Indian Trusts Act.(c) I think, that my best course in 
arranging the subject of these Lectures is to follow the plan 
upon which the bill is framed. I shall, therefore, commence 
by defining a trust. I shall then consider the different kinds 
of trusts ; the creation of trusts ; the duties and liabilities of 
trustees ; their rights and powers ; their disabilities ; the rights 



enactments appended to that Act. 
In the latest edition of the ' Collection 
of Statutes relating to India ' printed 
in 1913, Ss. 7 to 11 of the Statute are 
still retained. 

The Statute applies only to express 
trusts of real estate ; M'Fadden v. 
Jenkyns, 1 Ph. 153 ; Middleton v. 
Pollock, 4 Ch. D. 49 ; New, Prance and 
Garrard's Trustee v. Hunting (1897), 
2 Q. B. 19. If testamentary, they 
must keep up to the form of wills ; Re 



Boyes, Boyes v. Carritt, 26 Ch. D. 531. 
Chattels personal are not within the 
Statute and a verbal declaration will be 
valid and irrevocable ; Bayley v. Boul- 
cott, 4 Russ. 347 ; Kilpin v. Kilpin, 
1 Myl. K. 520. 

(a) 5 Bom., 154. 

(6) Bai Manickbai v. Bai Merbai, 
6 Bom., 363; See also Naoroji v. 
Bogers, 4 B. H. C. R., 1. 

(c) Act II of 1882. 



Lee. I.] DEFINITION OF TRUST. 15 

and liabilities of the cestui que trust ; vacating the office of 
trustee ; and the extinction of trusts. I shall also consider the 
subject of religious and charitable trusts among European British 
subjects, which is not dealt with by the Act. And I shall also 
consider the law of trusts as applicable to religious and charitable 
endowments established by Hindus and Buddhists, and the rules 
of Muhammadan law as to wuqf. 

A trust may be defined as an obligation imposed upon some 
person or persons having the ownership of property, 
whether moveable or immoveable, to deal with such pro- Definition 
perty for the benefit of some other person or persons, or for 
charitable purposes. Mr. Lewin adopts Lord Coke's definition of 
a use, the term by which, before the Statute of Uses, a trust of lands 
was designated, and defines a trust to be "a confidence reposed 
in some other, not issuing out of the land, but as a thing collateral, 
annexed in privity to the estate of the land, and to the person 
touching the land, for which cestui que trust has no remedy but by 
suhpcena in Chancery." But this definition is limited to trusts of 
lands only, whereas trusts may be declared of almost every kind 
of property. The Indian Trusts Act defines a trust as ' ' an obligation 
annexed to the ownership of property, and arising out of a confidence 
reposed in and accepted by the owner, or declared and accepted 
by him, for the benefit of another, or of another and the owner "(a). 

There must be a confidence reposed in the trustee. It is not 
necessary that the confidence should be expressly reposed 
by the author of the trust in the trustee, for it may be raised confidence. 
by implication of law, as in the case of a constructive 
trust which is raised by a Court of Equity " whenever a person 
clothed with a fiduciary character, gains some personal advantage 
by availing himself of his situation as trustee ; for, as it is impossible 
that a trustee should be allowed to make a profit by his office, it 
follows, that so soon as the advantage in question is shown to have 
been acquired through the medium of a trust, the trustee, however 
good a legal title he may have, will be decreed in equity to hold for 
the benefit of his cestui que trust "(6) : as for example, when a trustee 
or executor renews a lease in his own name, — or where a factor, 
agent, partner or other person in whom confidence is reposed, 
takes advantage of such confidence to acqttire a pecuniary benefit 
for himself, — in such cases he will be made' to account to the person 
in whose interest he was bound to act, and will have to refund 
any profits he may have made, or make good any loss caused 



ia) Act n of 1882, s. 5. For other 1886 ; WiUon v. Lord Bury, 5 Q. B. D. 

deMt^ns, see Act I of 1877; (0. A.). 518 ; Re Williams (189^2 Ch- 

Act XXVII of 1866; Act III of (C. A.), 12. 

1874 ; Act IX of 1908 ; Mad. Act II of (6) Lewin, 12th Ed., 201. 



16 KINDS OF TRUST. [LeC. I. 

by his acts. These cases I shall deal with at greater length 
hereafter. 

" Further, the trustee of the estate need not be actually 
capable of confidence, for the capacity itself may be supplied by 
legal fiction, as where the administration of the trust is committed 
to a body corporate ; but a trust is a confidence, as distinguished 
from jus in re and jus ad rem, for it is neither a legal property nor 
a legal right to property, 

" A trust is a confidence reposed in some other ; not in some 
other than the author of the trust, for a man may convert himself 
into a trustee, but in some other than the cestui que trust ; for, as 
a man cannot issue a subpoena against himself, he cannot be said to 
hold upon trust for himself ; and if the legal and equitable interests 
happen to meet in the same person, the equitable is for ever absorbed 
in the legal "(a) ; or, in other words, where the legal and equitable 
interests are co-extensive and vested in the same person, 
^'^^^^- the equitable merges in the legal interest. (6) 

The person who reposes the confidence is called the author 
. oj the trust ; the person who accepts the confidence is 

of^terms" called the trustee ; the person for whose benefit the con- 

fidence is reposed and accepted is called the cestui que trust, 
or beneficiary; the subject-matter of the trust is called trust- 
jyTo-perty or trust-money ; and the instrument, if any, by which 
the trust is declared, is called the instrument of trust(c). 

Having ascertained what is meant by a trust generally, I now 
propose to consider the different kinds of trusts. The 
most important division of trusts is into ' simple ' and 
' special ' trusts. 

" The simple trust," says Mr. Lewin(ci), " is where property 
g. J is vested in one person upon trust for another, and the 

^^ '^"^ ■ nature of the trust, not being prescribed by the settlor, is 
left to the construction of law. In this case cestui que trust has 
jus habendi, or the right to be put in actual possession of the pro- 
perty, and jus disponendi, or the right to call upon the trustee to 
execute conveyances of the legal estate as the cestui que trust 
directs." 

" The special trust is where the machinery of a trustee is 

introduced for the execution of some purpose particularly 

pecial trust, pointed out, and the trustee is not, as before, a mere 

passive depositary of the estate, but is called upon to exert 

(a) Lewin, 12th Ed., 12. (c) Indian Trusta Act, s. 6. 

yb) Wade v. Paget, 1 Bro. 0. C, 363; (d, 12th Ed., 16. 

Phillips V. Brydgea, SVes., 126. 



Kinds of 
trust. 



Lee. IJ 



KINDS OP TRUSTS. 



17 



himself actively in the exeeutioi of the settlor's intention ; as 
where a conveyance is to trustees upon trust to sell for pav- 
tnent of debts." ^ '' 

" Special trusts have again been sub-divided into ministerial 
(or mstrumental) and discretionary. The former, such 
as demand no further exercise of reason or understanding 
than every intelligent agent must necessarily employ; 
the latter, such as cannot be duly administered without 
the application of a certain degree of prudence and 
ment." 



Ministerial 
and discre- 
tionary 
trust. 



juiig- 



" A trust to convey an estate must be regarded as ministerial ; 
for, provided the estate be vested in the cestui que trust, it 
is perfectly immaterial to him by whom the conveyance is 
executed." 

" A fund vested in trustees upon trust to distribute among 
such charitable objects as the trustees shall think fi.t(a), is clearly 
a, discretionary trust, for the selection of the most deserving objects 
is a matter calling for serious deliberation, and not to be determined 
upon without due regard to the merits of the. candidates,^ and all 
the particular circumstances of the case." 

" There is frequent mention in the books of a mixture of trust 
and power(&), by which is meant, a trust of which the 
outline only is sketched by the settlor, while the details Mixture of 
are to be filled up by the good sense of the trustees. The 
exercise of such a power is imperative, while the mode 
of its execution is matter of judgment and discretion." 



trust and 
power. 



What 



Lawful 
and unlaw- 
ful trusts. 



Trusts may also be divided into lawful and unlawful, 
trusts are unlawful I shall consider more fully when dealing 
with the'creation of trusts. It is sufficient to state now that 
all lawful trusts may be enforced by a Court of Equity ; and, 
as a rule, it may be laid down that a trust is lawful until 
the contrary is shown. Where a trust is unlawful and fraudulent, 
a Court of Equity will remain neutral, and will neither enforce 
the trust, nor relieve the person creating it(c), unless the illegal 
purpose fails, to take effect, (d!).. 



(a) Attorney-General V. Gleg, 1 Atk., 
156 ; Hibbard v. Lamb., Amb., 309 ; 
Cole V. Wade, 16 Ves., 27 ; Gower v. 
Malnwaring, 2 Ves., 87 ; Tempest v. 
Gamoys, 21 Ch- D. (0. A.), 571 j In re 
Bryant (1894), 1 Ch. 324. 

(b) Cole V. ^oie, 16 Ves., 27 ; Oower 
V. Mainwaririgf'2 Ves., 89. 

•(c) Brachenbury Y. Brackenbury,' 2 J. 
& W., 391 ; Ohilders v. Chitders, 1 
DeG. and J., 482 ; Miles v. Dumford, 

A. IT 



2 DeG. M. & G., 643 ; PMUpots v. 
Phillpots, 110 C. B., .85. 

(d) Symes v. Hughes, L. R., 9 Eq., 
475 ; Mamming v. Gill, L. R., 13 Eq.,. 
485 ; Dawson v. Small, L. R., 18 Eq., 
114; Haigh r. Kaye, 7 Ch. App., 469. 
See also iidian Trusts Act, ss. 84 and 
85. Jadu Nath v. Reap Lai, 33 Cal.,. 
967, where all the authorities are 
reviewed. 



18 PUBLIC AND PRIVATE TRUSTS. [LeC. I. 

Again, trusts may be divided into public and private. Trusts 
for public purposes are such as are constituted for the 
Public and benefit either of the public at large or of some considerable 
truste.^ portion of it answering a particular description. Unlike 

private trusts they are of a permanent and indefinite 
character and not confined to any certain limits prescribed in a 
settlement, (a) All charitable trusts come under the description of 
public trusts.(&) " Public purposes," said Lord Eomilly, M. R.(c), 
" are such as mending or repairing the roads of a parish, supply- 
ing water for the inhabitants of a parish, making or repairing 
bridges over any stream or culvert that may be required in a 
parish : all these are ' public purposes ' in the ordinary sense of 
the term, and are distinguished from ' charities ' in the shape of 
alms-giving, building alms-houses, founding hospitals, and the 
like, and which are more properly termed ' charities.' It 
is true that, in a legal sense, they are all charities." A private 
trust, on the other hand, is a trust created only for the bene- 
fit of certain individuals who must be ascertained within a 
limited time. 

Finally, trusts may be divided into executed and executory. 
Executed Where the trust is complete in itself, — that is to say, when 

andexe- the author of the trust has formally and finally declared 

cutory what interest in the trust-property is to be taken by the 

trusts. cestui que trust, leaving nothing to the discretion of the 

trustee, the trust is said to be an executed trust. But where direc- 
tions are given for the execution of some future conveyance or settle- 
ment of trust-property, and the particular limitations are not fully 
or accurately specified, and the trust is, therefore, not complete in 
itself, but merely contains heads or minutes for the disposition 
of property which are to be carried into efEect in a more formal 
manner according to the intention to be collected from the instru- 
ment, the trust is said to be executory, (c) The distinction be- 
tween trusts executed and executory was questioned by Lord 
Hardwicke in Bagshaw v. Spencer{d) ; but it has long been firmly 



(e) Ohrists' Hospital v. Granger, 2 Ch., 400. 

1 Mac. & G., 460; Re Tyler (1891), (b) Dotany. Macdermot,t,.'B,., 5'Eq., 
3 Ch. (C. A.), 252 ; Be Bowen {1893), 62; affirmed on appeal, L. R., 3 

2 Ch., 681 ; Be Blunts Trusts (1904), Ch., 676. 

2 Ch., 767 ; Ee Swain (1905), 1 Ch. (c) Egerton v. Earl Brownlow, 4 

(C. A.), 669. H. L. C, 210 ; Tatham v. Vernon, 29 

(a) See Wilson v. Barnes, 38 Ch. D. Beav., 604. 

(C. A.), 507 ; Re Christchurch Inclosure (d) 2 Atk., 577 : 1 Ves,, 142, 152. 

Act, 38 Ch. D. (C. A.), 520, sub. uom. But later in feeZ v. Wallace, 2X05. 323, 

Attorney -General v. Meyrich (1893), his lordship offered an explanation and 

A. C. (H. L.), 1 ; Hunter v. A. G. and in Bastard v. Proby, 2 Cox. 8 he was 

Hood (1899), A. C. (H. L.), 309 ; Wallis taken to have renounced his original 

V. 8. G. for New Zealand (1903), opinion. 
A. C, 173 P. C. ; Re Allen (1905) 



Lee. I.] EXECUTED AND EXECXJTOEY TEUSTS. 19 

established as one of the settled rules of the Court of Chancery. 
It was thus stated in Austen v. Talyor{a) by Lord Northing- 
ton : " The words ' executory trust ' seem to me to have ^"^j*^" "• 
no fixed signification. Lord King, in the case of Papillon ^^ '^' 
V. Voice{b), describes an executory trust to be, where the 
party must come to the Court (the Court of Chancery) to have 
the benefit of the will. But that is the case of every trust, 
and I am very clear that this Court cannot make a different 
construction on the limitation of trust than Courts of Law could 
make on a limitation in a will, for in both cases the intention 
shall take place. . . . The true criterion is this : whenever the 
assistance of the trustees, which is ultimately the assistance, of 
this Court, is necessary to complete a limitation, in that case, 
the limitation in the will not being complete, that is sufficient 
evidence of the testator's intention that the Court should model 
the limitation. But where the trusts and limitations are already 
expressly declared, the Court has no authority to interfere and 
make them different from what they would be at law." And 
in Jervoise v. The Duhe of Northuniherland(c), Lord Bldon tgjyojse p 
said : " Where there is an executory trust, — ^that is to say. The Duke ' 
where the testator has directed something to be done, and of North- 
has not himself, according to the sense in which the Court u^i^edand. 
uses these words, completed the devise in question, the Court has 
been in the habit of looking to see what was his intention ; and if 
what he has done amounts to an imperfection, the Court inquires 
what it is itself to do, and it will mould what remains to be done 
so as to carry that intention into execution, "(c?) In Coa/pe ^ 

V. Arnold{e), Lord Cranworth, L. C, said : " In a certain Arnold" 
sense, and to some extent, all trusts are executory, i.e., in 
all trusts the legal interest is in some person who is bound in 
■conscience, and so is compellable by this Court, to employ that 
legal interest for the benefit of others. To this extent his duties are 
executory. Where the subject-matter of the trust is a real estate 
held by a trustee for the benefit of others, and the trustee has no 
active duties to perform, such as paying debts, raising portions, 
or the like, the same rules which would^ave decided the rights of 
parties, if the beneficial interest had been legal, will, in general, 
prevail in deciding for whose benefit the trustee is to hold the 
estate. The rule is, equity follows the law — a rule essential to the 
convenient enjoyment of property in this country, where the 
artificial distinction of legal and equitable estates so exten- 
sively prevails." 



(a) 1 Eden, 366, 368. Eden, 95 ; Wright v. Pearson, ib., 123. 

(6) 2 P. Wms., 471. (e) 4 DeG. M. & G., 585 ; see also 

(c) 1 J. & W., 570. Miles v. Harford, 12 Ch. D., 691. 

{d) See also Stanley v. Lennard, 1 



20 MAEEIAGE ARTICLE. [LeC. I. 

The cases in which executory trusts usually arise are where 

Executory articles are entered into previous to a marriage, the parties 

trusts in intending that a more formal document shall be drawn up 

marriage afterwards to carry out the provisions which are indicated 

Mticles and jj^ ^jj,g articles ; or where a testator intends that his property 

shall be settled in a particular way upon certain persons, 

but does not in his will state precisely the nature of the estate 

which he wishes to devise. In these cases the Court is obliged to 

construe the instrument and to declare such trusts as seem most 

accurately to carry out the intention of the author. 

A material distinction has been recognized in equity between 
Distinction ^^ executory trust founded on marriage articles, and one 
between voluntarily created, as by will. In the former case, the 

them. object of the settlement is usually to provide for the issue 

artS'^s^^ of the marriage. Therefore, unless the contrary clearly 

appear, equity presumes that it could not have been the 
intention of the parties to put it in the power of the parent 
to defeat the object of the settlement by appropriating the 
whole estate ; and on this presumption the articles will usually 
be decreed to be executed by limitations in strict settle- 
v.ltabks" '^ent. In Blachburn v. Stables{a), Sir W. Grant, M. E., 
said : — " I know of no difference between an executory 
trust in marriage articles and in a will, except that the object 
and purpose of the former furnish an indication of intention 
which must be wanting in the latter. When the object is to 
make a provision by the settlement of an estate for the issue 
of a marriage, it is not to be presumed that the parties meant to 
put it in the power of the father to defeat that purpose and to 
appropriate the estate to himself. If, therefore, the agreement 
is to limit an estate for life, with remainder to the heirs of the 
body, the Court decrees a strict settlement in conformity to the 
presumable intention ; but if a will directs a limitation for life, 
with remainder to the heirs of the body, the Court has no such 
ground for decreeing a strict settlement. A testator gives arbi- 
trarily what estate he thinks fit. There is no presumption that 
he means one quantity of interest rather than another ; an estate 
for life rather than in tail or in fee. The subject being mere bounty, 
the intended extent of that bounty can be known only from the 
words in which it is given ; but if it is to be clearly ascertained 
from anything in the will, that the testator did not mean to use the 
expressions which he has employed in their strict, proper, technical 
sense, the Court, in decreeing such settlement as he has directed, 
will depart from his words in order to execute his intention ; but the 
Court must necessarily follow his words, unless he has himself 
shown that he did not mean to use them in their proper sense ; 

(a) 2 V. & B., 369. 



Lee. I.] WILL. 21 

and courts have never said that merely because the direction was 
ior an entail, they would execute that by decreeing a strict settle- 
ment." And in Jervoise v. The Duke of Northumberland{a), Lord 
Eldon said : — " In marriage articles, the object of such settlement, 
the issue to be provided for, the intention to provide for such x^ j^ 
issue, and, in short, all the considerations that belong The Duke" 
peculiarly to them, afford prima facie evidence of intent, of North- 
which does not belong to executory trusts under wills. But ""iberland. 
I take it according to all the decisions, allowing for that an executory 
trust in a will is to be executed in the same way."(&) In the case 
of a will, the Court endeavours to carry out the intentions of the 
testator as apparent on the will, and is not necessarily ^.., 
bound to give technical words their strict signification ; 
and if, therefore, the directions of the testator as to the disposition 
of the trust-estate show that he could not have intended the ex- 
pressions to have their strict technical operation, the Court, in 
decreeing a settlement, will depart from the words in order to 
execute the intent, (c) Where a testator directs his trustees to 
settle or convey an estate without more, the Court is obliged to 
interfere and to point out the estate to be taken by the cestui que 
trust. But if a testator merely directs the purchase of an estate 
by his trustees, and himself declares the uses of the estate when 
purchased, the Court has no power to alter or modify his words ((?) ; 
it is only when something is left incomplete and executory by the 
author of the trust, that a Court of Equity will mould or modify the 
words in order to give effect to the intentions of the party. 
For, if the limitations of the trust-estate are definitely and finally 
declared by the instrument itself, that will be an executed trust, 
and it must be carried into execution as strictly and literally as 
if it were a limitation of the legal interest, (e) 

If the executory trust, which the testator has attempted to 
create, is one which is void for illegality, as where it 
violates the rule against perpetuities, the Court will carry ^^ ^''^• 
out the testator's intention cy pres, that is, as nearly as possible, 
and will direct the property to be strictly settled. (/) 

We have seen that the Court will endeavour to carry out 
the intentions of the author of the trust, and in so doing 
is not bound to give their strict meaning to technical i^t^ntion. 

(a) 1 Jac. & W., 574. berland, 1 Jao. & W., 570 ; Bale 

(6) See Sackville West v. Viscount v. Coleman, 1 P. Wms., 142 : 2 

Jlolmesdale,li.'R.,4:'E. S!,l.,App., 543. Vem., 670; Papillon v. Voice, 2 P. 

(c) 2 Jarm. Pow. Dev., 442 ; see Wms., 477 ; Douglas v. Congreve, 1 

Sachville West v. Viscount Holmesdale, Beav., 59. 

L. R., 4 E. & I.. App., 543. (/) HumbSrston v. Humberston, 2 

{d) Austen v. Taylor, 1 Eden, 361 ; Vem., 737 : 1 P. Wms., 332. See 

S. C, Amb., 376. ElMns v. Cullen, 13 N. L. R. 51: 40 

(e) Jervoise Y. The Duke of Northum- I. C, 791. 



22 GENERAL RULES. [LeC. I. 

expressions which may be used in the instrument creating the 
trust. Upon this principle of carrying the intentions of the testator 
into effect, the Court will endeavour to construe expressions which 
have no strict technical operation, and this whether the instrument 
of trust be a deed or will, (a) 

But the expressions used must be directory and certain ; mere 
precatory expressions, or words of recommendation, will not be 
enforced. (6) 

In conclusion of this subject, it may be stated generally for 

the guidance of trustees, that where an executory trust 

rule?^ arises on marriage articles, whose object is to provide for 

the husband and wife, and their issue, the trustees will be 

justified in executing the trust by limiting the estate in strict 

settlement, although it would certainly be the more prudent course 

for them to obtain a declaration of the Court for their guidance 

even in these cases. 

But where the trust is created by will, and the testator has 
not himself distinctly and accurately specified the limitations 
which are to be inserted, trustees could seldom or ever be advised 
to take upon themselves the responsibility of putting a construction 
on the direction of the testator by the execution of any particular 
settlement ; this can be done with safety only under the sanc- 
tion of the Court. And the same remark applies to executory 
trusts created by any voluntary deed or instrument operating 
inter vivos. 

If a husband have entered into articles on his marriage, binding 
himself to make a particular provision for his wife and children, 
it will not be competent for the trustees of their own authority to 
accept any other provision in lieu of that contemplated by the 
articles ; although they will be justified in instituting a suit for the 
purpose of bringing the propriety of such a substitution before the 
Court, (c) 

The next point to consider after defining the different kinds 
of trusts, is, the property which may be made the subject of a 
trust. As a general rule it may be laid down, that every kind of 



(a) Woolmore v. Burrows, 1 Sim., & B., 367. 
512 ; Lord Dorchester v. The Earl of (6) As to the limitations which will 



_ham, 3 Beav., 180 ; Banhes v. Le be directed, see Lewin on Trusts, 12th 

Despencer, 10 Sim., 576 ; Countess of Ed., 130 — 140 ; Knight v. Knight 

Lincoln v. Duke of Newcastle, 12 Ves., 3 Beav., 148, 177. 

218 ; Lord Deerhurat v. Duke of St. (c) See Hill on Trustees, 329, citing 

Albans, 5 Mad., 232 ; Jervoise v. The Cooke v. Fryer, V. C. Wigram, 19th 

Duke of Northumberland, 1 J. & Nov., 1844. 
W., 559 ; Blackburn v. StabUs, 2 V. 



Lee. I.] SUBJECT-MATTER OE TRUST. 23 

property, whether moveable or immoveable, which may be legally 
transferred or disposed of(a), may be the subject of 
a trust, but it must not be a merely beneficial interest Subject- 
under a subsisting trust. (6) It is not necessary in England trust^"^ 
that the person creating the trust should have the legal 
estate, — that is to say, should be the absolute owner, for the 
equitable owner of property, or the person having the beneficial 
interest, may create a trust of such beneficial interest, (c) But 
the limitation against trusts of beneficial interests has been adopted 
in India to avoid complications that might arise by allowing a 
trust upon a trust. («i) A trust may be created of property which 
is not in the actual possession of the author of the trust, such as 
property to which he will become entitled on the death of a third 
person, (e) But a mere expectancy, in the nature of a naked 
possibility, cannot be the subject of any dealing. (/) A reversioner, 
presumptively entitled to the estate held by a Hindu widow, 
cannot create any valid interest in his possible inheritance, (gi) 

In Green v. Folgham(h), the sole possessor of a recipe for 
making a medicine assigned it, on the marriage of his daughter, 
to trustees, upon trust for her and her husband for their lives ; 
and directed that, after their decease, it should be sold for the 
benefit of their children. The mother destroyed the recipe, and 
verbally communicated the contents to her eldest son for the benefit 
of his brothers and sisters. In a suit brought against him by some 
of the younger children, he was declared to hold the secret upon the 
trusts of the settlement, and was decreed to account for the profits 
made by him by the sale of the medicine after his mother's death : 
and as a sale was impracticable, an issue was directed to ascertain 
the value of the secret. In Jenks v. Holford{i), Lord Northington, 
on an attempt being made to make a child bring some chemical 



{a) Transfer of Property Act, IV deemed to have been done " does not 

of 1882, s. 6. apply 5 {Gitabai v. Balaji, 17 Bom., 

(6) Indian Trusts Act, s. 8. 232, is now not good law). 

(c) Knight v. Bowyer, 23 Beav., 635 ; (g) Sham Sundar v. Achhan, 21 AH., 
affirmed on appeal, 2 DeG. & J., 421. 71 P. C. ; Jagannath v. Dibbo, 31 AH., 

(d) Whit. Stokes, Anglo-Indian 53 ; Hargawan v. Baijnath, 32 All., 88 ; 
Codes, Vol. I, 825. Nund Kishore v. Kanee, 24 Cal., 355 ; 

(e) Hobson v. Trevor, 2 P. Wms., Manickyam v. Bamalinga, 29 Mad., 
191 ; Wright v. Wright, 1 Ves., 411. 120 ; Dhoorjeti v. Venkayya, 30 Mad., 

(/) Be Parsons, 45 Ch. D., 51. See 201 ; Suraparaju v. Veerabhadrudu, 30 

also Be Ellenborough (1903), 1 Ch., Mad., 486. As to the applicability of 

697. Transfer of Property Act (1882), s. 43 of the Transfer of Property Act in 

s. 6 (a) ; Bamasami v. Bamasami, 30 such cases, see Syed Nurul v. Sheo- 

Mad., 255 ; Amiul v. Mir Nurudin, 22 sahai, 20 Cal., 1 ; Nund Kishore v. 

Bom., 489 (case under Muhamadan Kaneram, 29 Cal., 355 ; Jagannadha v. 

Law) ; Laliteswar v. Barmswar, 30 Cal., Balaaurya, 39 Mad. , 554 ; Shiamsundar 

481 ; Abdul v. Goolam, 30 Bom., 304 ; v. Dilganjan, 39 I. C, 540. 

also Abdul y. Mt. Nuran, 11 Cal., 597, (h) 1 S. & S., 398. 

P. C. In such cases the doctrine (i) 1 Vem., 62. 
" what ought to have been done is 



24 TRUST AGAINST POLICY OP LAW. [LCC. I. 

recipes given to lier by her father into hotchpot, said, he would not 
countenance these sorts of recipes, which he thought in most cases 
savoured of quackery, so as to put a value on them in Chancery ; 
as for aught he knew a recipe to make mince pies or catch rats 
might be as valuable. If, however, the recipe is valuable, even 
though it is for a trivial matter, there does not seem to be any 
good reason why it should not be made the subject of a trust. 

If the policy of the law, as in the case of trusts for immoral 

_ . purposes, or any statutory enactment such as the provi- 

against sions of the Transfer of Property Act, IV of 1882, s. 14, 

policy of against perpetuities, prevent the author of the trust from 

'^''' parting with the beneficial interest in favor of the 

intended cestui que trust, no valid trust can be created. I shall 

deal with the subject of trusts against the policy of the law 

more fully hereafter. 

No trust can be declared of a title of honor or of a peerage. 

These are from their very nature personal possessions, 

honor ^^^ belong only to the person to whom they are granted 

or on whom they descend, and cannot be held by one 

person upon trust for another, (a) 

As a general rule, a Court of Justice has no control over immove- 
able property situate without the local limits of its jurisdic- 
knmoveable ^^°^- ^^^ ^ Court administering equity, as the Courts 
property in this country are bound to do, may, where a person 

without the against whom relief is sought is within the jurisdiction, 
o^Tcourt" make a decree upon the ground of a contract or any 
equity subsisting between the parties respecting property 
situated out of the jurisdiction. The leading case on this point 
Penno ^® ^^^^ ^^ Penn V. Lord Baltimore(b), where specific p.;- 

Lord formance was decreed of an agreement respecting land j in 

Batimore. America. 

Act V of The Code of Civil Procedure, Act V of 1908, ss. 15, 16, 

l!°iS, 1,6. provides that^ 

" Every suit shall be instituted in the Court of the lowest 
grade competent to try it. 

Subject to the pecuniary or other limitations provided by any 
law, suits 

{a) for the recovery of immoveable property, 
(6) for the partition of immoveable property, 
(c) for the foreclosure or redemption of a mortgage of immove- 
able property, 

(a) The Buckhurst Peerage, L. R., (6) 1 Ves., 444. 

2 App. Ca., 1. 



IjCC. I.] JUEISDICTION OP HIGH. COUET. 25 

{d) for the determination of any other right to, or interest in, 
immoveable property, 

(e) for compensation for wrong to immoveable property, 

(f) for the recovery of moveable property actually under 
distraint or attachment, 

shall be instituted in the Court within the local limits of 
whose jurisdiction the property is situate : 

Provided that suits to obtain relief respecting, or compensa- 
tion for wrong to, immoveable property held by or on behalf of 
the defendant may, when the relief sought can be entirely obtained 
through his personal obedience, be instituted either in the Court 
within the local limits of whose jurisdiction the property is situate 
or in the Court within the local limits of whose jurisdiction he 
actually and voluntarily resides or carries on business, or personally 
works for gain. 

Explanation. — In this section 'property ' means property 
situate in British India. 

This section does not apply to the High Courts in the exercise of 
their ordinary or extraordinary civil jurisdiction, (a) The jurisdic- 
tion of the High Courts of Calcutta, Bombay, and Madras, with 
regard to land without the limits of their ordinary original civil 
jurisdiction, is provided for by the Charter Act(6) and the 
Letters Patent granted under it. Section 9 of the Charter chlrter'"'^*^' 
Act provides, that each of the High Courts to be established 
under the Act shall have such jurisdiction as Her Majesty may, by 
Letters Patent, grant and direct, subject, however, to such direc- 
tions and limitations as to the exercise of original civil and criminal 
jurisdiction beyond the limits of the Presidency-towns as may 
be prescribed thereby. Section 12 of the Letters Patent provides 
that the High Court, in the exercise of its ordinary original 
civil jurisdiction, shall be empowered to receive, try, and Patent, 
determine suits of every description, if, m the case of suits 
for land or other immoveable property, such land or property shall 
be situated, or in all other cases, if the cause of action shall have 
arisen, either wholly, or, in case the leave of the Court shall have 
been first obtained, in part, within the local limits of the ordinary 
original jurisdiction of the High Court, or if the defendant, at the 
time of the commencement of the suit, shall dwell or carry on 
business, or personally work for gain within such limits. The 
High Courts have jurisdiction, under this clause, to enter- _ .. , 
tain suits for land, whether the land is situated wholly, or j^j 
in part only, within the local limits of their ordinary 

(a) See Act V of 1908, s. 120. (6) 24 & 25 Vict., c. 104. 



26 



JURISDICTION OF HIGH COURT. 



[Lee. I. 



original jurisdiction, leave of the Court having been first obtained 
in the latter case, (a) But if leave has not been obtained they have 
no jurisdiction, even though the parties are personally subject to 
the jurisdiction. (6) Thus the- Courts have jurisdiction to decree 
foreclosure of lands partly within and partly without the limits 
of their Original Civil Jurisdiction, where leave has been obtained (c) ; 
but not if no leave has been granted((?), suits for foreclosure being 
suits ' for land. '(e) So also suits for partition of land or declaration 
of title to land(/), for damages for trespass to land(5r), for redemp- 
tion of mortgages(A), and for sale of mortgaged property in satisfac- 
tion of the mortgage-debt (i), are suits for land, {j} On the nature 
of a suit for specific performance of an agreement to mortgage or 
to sell, there is a difference of opinion. (^) 

But every suit having reference to land is not necessarily a 
suit ' for land,' and the Courts have jurisdiction if the object of 
the suit is not to recover possession of the land or to deal with the 
land itself Q) ; and it has been held, that a suit to declare that a 
person resident in Calcutta holds lands in the mofussil subject to 



(a) Prasannamayi Dasi v. Kadam- 
bini Dasi, 3 B. L. R., 0. C, 85 ; Sm. 
Jagadamha Dasi v. Sm. Padamani Dasi, 
6 B. L. R., 686 ; Sreenath Boy v. Cally 
Doss Ohose, 5 Cal., 82 ; Sarat Chandra 
V. Nahapiet, 37 Cal., 907 ; Matigara 
Coal Co. V. Shragers Ld., 38 Cal., 824. 
See also Punchanun v. 8hib CAunder, 
14 Cal., 835 ; Jairam v. Atmaram, 4 
Bom. , 482 ; Balaram v. Eamacliandra, 
22 Bom., 922 ; Sewaram v. Bajrangdat, 
40 Bom 473 ; Shama Kanta v. Kuswm 
Kiemari, 44 Cal. 10. 

(6) The East Indian Railway Co. v. 
The Bengal Coal Co., 1 Cal., 95 ; The 
Delhi and London Bank v. Wordie. 
ibid., 249; De Souza v. Colls, 3 
M. H . C. R., 384 ; Eampurtab v. 
Premsuhh, 15 Bom., 93. 

(c) The Bank of Hindustan, China, 
and Japan v. Nundolall Sen, 11 B. L. 
R., 301. 

{d) Juggodumba Dosi v. Puddo- 
money Dosi, 15 B. L. R., 318, 328. 

(e) Bebee Jaun v. Meerza Mahomed 
Hadee, 1 Ind. Jur., 40 ; Kanti Chunder 
V. Kissori Mohun, 19 Cal., 361. But 
see contra, Sorabji v. Euttonji, 22 Bom., 
701. 

(/) Hara Lai V. Nitambini, 29 Cal., 
315 ; Jairam v. Atmaram, 4 Bom., 482 ; 
Vaghoji v. Camaji, 29 Bom., 249. 

[g) Lodna Colliery Co. v. Bepin, 
39 Cal., 739 ; Sudamidah Coal Co. v. 
Empire Coal Co., 42 Cal., 942 ; Srinivasa 



V. Kannappa, 30 M. L. J. 120 (suit 
for damages for cutting away trees) 
British South Africa Go. v. Com de 
Mocamhique (1893), A. C, 602. 

(h) Lalmoney Dossee v. Judoonath 
Shaw, 1 Ind. Jur., 319. 

(i) Leslie t. The Land Mortgage 
Bamfc, 1 8 W. R. , 269. See al=!0 Sundara 
Bai V. Tirumal, 33 Mad., 131 (suit to 
enforce charge for maintenance). 

(j) But see Venkoba v. Rambhaji, 
9 B. H. C. R., 12 ; Sudamdikh Coal 
Co. V. Empire Coal Co., 42 Cal., 942 ; 
NaXum v. Krishnasami, 27 Mad., 157. 

{k) It is a,' suit for land ' ; Sreenath 
Roy V. CaUy Doss, 5 Cal., 82 ; Land 
Mortgage Bank v. Suduredeen, 19 Cal., 
358. (In this case a distinction was 
made between a suit by the purchaser 
and a suit by the vendor to enforce 
the contract) ; Nalumv. Krishnasami. 
27 Mad., 157. It is not ; Holkar v, 
Dadabai, 14 Bom., 353 ; Hunsraj v. 
Runchordas, 7 Bom., L. R. 319. 

(I) Juggodumba Dosi v. Puddo- 
moni Dosi, 15 B. L. R., 318 ; East 
Indian Railway Co. v. The Bengal Coal 
Co., 1 Cal., 95 ; The Delhi and London 
Bankv. Wordie, 1 Cal., 249; Kdliex. 
Eraser, 2 Cal., 445 ; Juggemauth Doss 
V. Brijnath Doss, 4 Cal., 322. In this 
last case it was held that a suit for 
recovery of title-deeds of land was 
not a ' suit for land ' ; but see also 
Zwlekhabaiv. Ebrahim, 37 Bom., 494. 



Lee. L] foundation of jurisdiction. 27 

certain trusts, is not ' a suit for land.'(a) A suit in personam can 
be entertained if the defendant resides within the jurisdiction, as, 
for example, a suit to restrain a nuisance. (6) 

In order to found the jurisdiction of the Court some one of three 
circumstances must exist ; either the defendant must be 
within the jurisdiction of the Court, or the subject-matter Foundation 
in dispute must be situated within the jurisdiction of the ^Vn""^''"^' 
Court, or the contract must have been entered into within 
the jurisdiction of the Court, (c) The fact that the defendant may- 
be served with the summons, although he is residing abroad{(i), 
does not extend the jurisdiction of the Court, (e) In Edwards v. 
Warden(f), a suit was instituted against four trustees in India 
of a fund in India, and one formal defendant in England, to 
recover money payable in England. The trustees were served 
out of the jurisdiction, appeared and answered and entered into 
evidence ; and it was held, that as they had not demurred, or 
pleaded, or moved to discharge the order for service, the Court 
of Chancery had jurisdiction to determine the questions between 
the parties. 

The Court, in enforcing equitable rights over, or titles to, land 
situated without the limits of its jurisdiction, operates Court of 
upon the conscience of the defendant or in personam(g), equity acts 
not upon the property or in rem, and the decree, therefore, ^"personam 
does not directly affect the property(A) ; but a trust of such rem^° 
land is supported against a trustee resident within the lj^j ^^y ^^ 
jurisdiction by a decree operating in personam.{i) It is in a foreign 
immaterial whether the lands are situated within the country 
limits of the British empire or are in a foreign country. The 
Court of Equity will exercise its authority if the 
defendant is within its jurisdiction. (j) In Angus v. Anfus" 
Angus{k), a bill was brought, for possession of lands in 
Scotland, and for a discovery of the rents and profits, deeds 
and writings, and fraud in obtaining the deeds was charged. 
The defendant pleaded the 19th article of the Treaty of Union, 

(a) Bagram v. Moses, 1 Hyde, 284 ; (h) Earl of Kildare v. Eustace, 1 

Bee also Juggodumba Dosi v. Puddo- Vem., 421 ; Boberdeau v. Sous, 1 Atk., 

nioni Dosi, 15 B. L. R., 318; Brough- 543; Carteret v. Petty, 2 Sw., 323m. 

ton V. Mercer, 14 B. L. R., 442 ; Tree- (i) Perm v. Lord Baltimore, 1 Ves., 

poora Soondery Dossee v. Debendronath 454 ; see also Deschamps v. Miller 

Tagore, 2 Cal., 52. (1908), 1 Ch., 856. 

(6) Eajmohun Bose v. The East ( j) Earl of Kildare v. Eustace, 1 

Indian Railway Co., 10 B. L. R., 241. Vem., 421 ; Drummond v. Drummond, 

(c) Coohney v. Anderson, 31 Beav., 37 L. J. N. S. Ch., 811 : 17 W. R., 6 ; 

452, 642. Ewing v. Ewing, 9 App. Cas., 34 ; Com. 

{d) Act V of 1908, 0. 5, R. 25. de Mocambique v. British South Africa 

(e) Ibid., and see Maunder \. Lloyd, Co. (1892), 2 Q. B., 404 ; Kashinath v. 

2 J. and H., 718. Aruint, 2 Bom. L. R., 47. 

(/) L. R., 9 Ch., 495. (k) 1 West, 23. 

(g) Toller v. Carteret, 2 Vem., 494. 



28 LAND IN fOEEIGN COUNTRY. [LCC. I. 

and that the lands in question, and the matter prayed by 
the bill, were out of the jurisdiction of the Court. Lord 
Hardwicke said : — " This Court acts upon the person as to 
the fraud and discovery, therefore the' plea must be overruled. 
To have made this a good plea, there ought to have been a further 
averment, that the defendant was resident in Scotland. This 
had been a good bill as to fraud and discovery if the lands had 
been in France, if the persons were resident here ; for the jurisdic- 
tion of the Court as to frauds is upon the conscience of the party."(a) 
Of course the Court of one country has no jurisdiction over the 
Court of another. In Lord Cranstown v. Johnston{b), 
Xord Crans- ^^^ plaintiff sued to set aside a sale made in pursuance of 
Johnston. ^ decree fraudulently obtained in the absence of the debtor 

by the creditor, who hinjself purchased the property at 
the execution-sale. The property was situated in the Island of St. 
Christopher in the West Indies. Sir E. P. Arden, M. E., said : — 
" Upon the whole it comes to this, — that by a proceeding in the 
Island, an absentee's estate may be brought to sale, and for 
whatever interest he has, without any particular upon which they 
are to bid ; the question is, whether the Court will permit the 
transaction to avail to that extent. It is said, this Court has no 
jurisdiction, because it is a proceeding in the West Indies. It 
has been argued very sensibly that it is strange for this Court 
to say, it is void by the laws of the Island, or for want of notice. 
I admit I am bound to say that, according to those laws, a 
creditor may do this. To that law he has had recourse, and 
wishes to avail himself of it : the question is, whether an English 
Court will permit such a use to be made of the law of that Island 
or of any other country. It is sold, not to satisfy the debt, but in 
order to get the estate, which the law of that country never could 
intend, for a price much inadequate to the real value, and to pay 
himself more than the debt for which the suit was commenced, 
and for which only the sale coidd be holden. It was not much 
litigated that the Courts of Equity here have an equal right 
to interfere with regard to judgments or mortgages upon lands 
in a foreign country as upon lands here. Bills are often filed upon 
mortgages in the West Indies. The only distinction is, that this 
Court cannot act upon the land directly, but acts upon the cons- 
cience of the person living here.(c) Those cases clearly show that, 
with regard to any contract made, or equity, between persons 
in this country respecting lands in a foreign country, particularly 
in the British dominions, this Court will hold the same jurisdiction 
as if they were situated in England. Lord Hardwicke lays down 



(a) See Scott v. Nesbitt, 14 Ves., 438. v. Muschamp, Lord Kildare v. Eustace, 
(6) 3 Ves., 170. 1 Eq. Abr., 1 ; 1 Vern., 75, 

(c) Archer v. Preston, Lord Ardglasse 135, 419. 



Lee. I.] INJUNCTION. 29 

the same doctrine, (a) Therefore, without affecting the jurisdiction 
of the Courts there, or questioning the regularity of the proceedings 
as in a Court of Law, or saying that this sale would have been set 
aside either in law or equity there, I have no difficulty in saying, 
which is all I have to say, that this creditor has availed himself 
of the advantage he got by the nature of those laws, to proceed 
behind the back of the debtor upon a constructive notice which 
could not operate to the only point to which a constructive notice 
ought, that there might be actual notice without wilful default : 
that he has gained an advantage, which neither the law of 
this nor of any other country would permit. I will lay down the 
rule as broad as this : this Court will not permit him to avail 
himself of the law of any other country to do what would be 
gross injustice." 

Acting upon these principles, the Court of Chancery in England 
has decided questions relating to trusts of lands in Ireland(&), in the 
Island of Sark(c), in South America(e?), and in the West Indies, (e) 
It has ordered a sale of lands abroad(/), and has given relief 
against a fraudulent conveyance. (5^) In Paget y. Ede(h), it was 
held, that a foreclosure decree being a decree in personam depriving 
the mortgagor of his personal right to redeem, the Court had juris- 
diction to make such a decree in respect of a mortgage between 
an English mortgagor and mortgagee of land in one of the 
colonies. 

There must be a privity between the plaintiff and defendant, 
and it must appear that some contract or personal obliga- 
tion has been incurred moving directly from the one to ^"^'^''y- 
the other, (i) 

The jurisdiction of the Court is foimded like all other jurisdic- 
tion of the Court, not upon any pretension to the exercise 
of judicial and administrative rights -abroad, but on the restrai^ning; 
circumstance of the person of the party on whom the proceeding 
order is made being within the power of the Court, ^y °*er 
And, acting upon the foregoing principles, it can restrain °"^ ^' 
the party within the limits of its jurisdiction from doing anything 
abroad, whether the thing forbidden be a conveyance or other 



(a) 3 Atk., 589. (/) Eoberdeauv. Rous, 1 Atk., 543. 

(b) Earl of Kildarev. Eustace,! Yein. (g) Earl of Ardglassev. Muachamp, 
421 ■,: Cartwright v. Pettus, 2 Ch. Ca., 1 Vem., 75. 

214 ; Earl of Ardglasse v. Muschamp, (h) L. R., 18 Eq., 118. 

1 Veru., 75. (i) Norris v. Chambres, 29 Beav., 

(c) Totter v. Carteret, 2 Vem., 495. 246 — 254 ; Com. de Mocambique v. 
Id) Cood V. Good, 33 Beav., 314. British South Africa Co. (1892), 2 
(e) Lord Cranstown v. Johnston, Q. B., 365. 

3 Ves., 182. 



30 INJUNCTION. [Lec. I. 

act in pais, or the instituting or prosecution of an action in a 
foreign Court, (a) 

And therefore the Court of Chancery in England has restrained 
persons within the jurisdiction from suing in the. Ecclesiastical 
Court(6), the Admiralty Court(c), in the Courts in Ireland{d), 
Scotland(e), and the Colonies(/), and has restrained a defendant 
from taking possession, (g') 

If, however, a contract relating to land situated out of the 
jurisdiction be one which the lex loci rei sitae renders incapable of 
fulfilment, the Court will not enforce the contract against the 
proceeds of a sale of such land coming to the possession of parties 
within the jurisdiction, though they take such proceeds bound by 
the same equities as affected the party to the contract under 
whom they claim. (^) 

The decree of the Court does not, as we have seen, affect the 
property directly. It is a personal decree ordering the 4efendant 
to do certain things. If he neglects or refuses to obey these orders, 
he can be imprisoned for an indefinite period for contempt of 
Court, and his property within the jurisdiction can be seized, and 
thus " his conscience is operated upon." If, however, he is able 
to evade the process of the Court for arrest and has no property 
in the country which can be seized, the decree is of course practically 
useless, (t) As a rule, there is no jurisdiction to determine the 
rights of parties to foreign immoveables and the Courts of Equity 
" although armed with much more effectual powers for enforcing 
their decrees than were possessed by the Courts of Common Law, 
refused with almost equal uniformity the direct determination of 
title to foreign land, "(j) Indian Courts are governed by the same 
principles as the Court of Equity in England, but only so far as 
such principles are not at variance with express legislative enact- 
ment, (fc) 



{a) Lord Portarlington v. Soulby, (h) Waierhouse v. Standfield, 9 Hare, 

3 M. & K., 108. 234 ; 10 Hare, 254 ; Norris v. 

{b) Hill V. Turner, 1 Atk., 516; Cftamfires, 29 Beav., 246. 

Sheffieldr. The Duchess of Buckingham- (i) See Norris v. Chambres, 29 

shire, 3 M. & K., 628. Beav., 246, 253. 

(c) Blad V. Barrtfield, 3 Swanst., 604 ; (j) British South Africa Co. v. Com. 
Jarvis v. Chandler, 1 T. & R., 319. de Mocambique (1892), 2 Q. B., 364 ; 

(d) Lord Portarlington v. Soulby, per Wright, J. In re Hawthorne, 23 
3 M. & K., 104; Booth v. Leijcester, Ch. D., 743. 

1 Keen, 519. (k) East India By. Co. v. Bengal 

(e) Kennedy v. Earl of Cassilis, 2 Coal Co., 1 Cal., 95. (The express 
Swanst., 313; Innes v. Mitchell, 4 words of the Letters Patent render the 
Drewry, 57. decision in Paget v. Ede, 18 Eq., 118, 

( /) Bunbury v. Bunbury, 1 Beav., inapplicable) ; Kashinalh v. Anant, 

318. 2 Bom. L. R., 47. As to the provincial 

(g) Cranstown v. Johnston, 5 Ves., courts, see Keshav v. Vinayalc, 23 

278 ; Hope v. Carnegie, L. R., 1 Ch., Bom., 22 ; Isak v. Khatija, 23 Bom., 

320. 756. 



Lee. I.] LAWFUL TRUST. 31 

Moveable property has no locality, but is subject to the law 
which governs the person of the owner. Accordingly, Trusts of 
moveable property abroad belonging to a British subject moveable 
may become the object of a trust, which will be recognized property 
in this country, (a) abroad. 

I shall now deal with the object for which a trust is created. 
We have seen already, ante, p. 17, that trusts may be 
divided into lawful and unlawful, and that all lawful ^^'i^^^ 
trusts may be enforced by a Court of Equity, and that, lawful, 
as a rule it may be laid down, that a trust is lawful until 
the contrary is shown ; and that where a trust is unlawful and 
fraudulent, a Court of Equity will remain neutral, and will neither 
enforce the trust nor relieve the person creating it, unless the illegal 
purpose fails to take effect. In considering whether the object of 
the trust is one permitted by the law, the general rule to be 
followed is, that the intention of the author of the trust 
is to be carried into effect, where it is not against good ^ultlor 
policy (6) ; " it is the intention of the party that creates ascertain- 
and governs uses and trusts" (c) ; "a trust is created by ingwhe- 
the contract of the party, and he may direct it as he lawful"^* 
pleaseth."((^) " What the Court looks at in all charities " 
(and the rule applies equally to all other trusts) said Romilly, 
M. E.(e), "is the original intention of the founder, and apart from 
any question of illegality and various other questions, this Court 
carries into effect the wishes and intentions of the founder of the 
charity : and where it sees that those intentions have not been 
carried into effect, it rectifies the existing administration of the 
charity for that purpose. If it cannot carry them into effect 
specifically, it carries them into effect as nearly as may be, and 
with as close a resemblance to them as it can." This rule has 
been applied to trusts created by Hindus. (/) 

To determine whether the object of a trust is legal or x"'''Ta t 
not, the Indian Trusts A.ct{g) enacts : — s /^^^ ^ "^ ' 

" A trust may be created for any lawful purpose. The 
purpose of the trust is lawful unless it is (i) forbidden by 
law, or (m) is of such a nature that, if permitted, it would p^^^"' ^^' 
defeat the provisions of any law, or [Hi) is fraudulent, 
or {iv) involves or implies injury to the person or property of 



(a) Hill on Trustees, 3 ; Hill v. (e) Attorney-General v. Dedham School, 

Beardon, 2 Russ., 608. 23 Beav., 355. 

{b) Burgess v.Wheate, I Eden, 195. {f)JatmdraMohanTagorev.Ganen- 

(c) The Attorney-General v. Sands, dra Mohan Tagore, 9 B. L. R., 

Hardres, 494, per Lord Hale. 377. 

{d) Pawlettv. The Attorney-General, (g) See also Indian Contract Act 

Hardres, 469, per Lord Hale. (1872), s. 23. 



32 



ASSIGNMENT OF HALF PAY. 



[Lec. I. 



Trusts con- 
trary to 
policy of 
law or 
founded 
upon illegal 
contract 
void. 



another, or (v) the Court regards it as immoral or opposed to 
public policy. 

Every trust of which the purpose is unlawful, is void. And 
where a trust is created for two purposes, of which one is lawful, 
and the other unlawful, and the two purposes cannot be separated, 
the whole trust is void." 

It appears, therefore, that if the object of the trust is con- 
trary to the policy of the law, or if it is- founded upon an illegal or 
immoral contract, it will be void, (a) For example, if the 
trust is based upon a transaction forbidden by the law(6), 
or is intended as a fraud upon an act of the Legislature (c), 
such for instance, as a fictitious and fraudulent conveyance 
for the purpose of obtaining a property qualification to 
enable the grantee to vote at elections((^), it will be void. 
In May v. May{e), a conveyance of property by a father 
to his son, to give him a qualification to vote, was held 
not invalid, but a bounty. In Groves v. Groves(f), property was 
purchased by one person and conveyed to another in order to give 
the latter a vote at Parliamentary elections, and the Court refused 
to assist the purchaser, and a suit by him, seeking to make the 
grantee a trustee, was dismissed. (5^) So an assignment of 

o/haK^ay* *^® ^^^^ P^^ ^^ ^^ °^^^^ i» *^e army is bad. For half 
pay is intended by the State to provide decent main- 
tenance for experienced officers, both as a reward for their past 
services, and to enable them to preserve such a situation that 
they may always be ready to return into actual service. It 
materially differs, therefore, from the general case of expectancies, 
which may be assigned ; for in the latter case, no public interest is 
thwarted. Thus a pension is equally uncertain as half pay ; but 
as no future benefit is meant to arise to the State from granting 
it, a material difference arises between them.(fe) Any trust 
which seeks to alter the ordinary law of descent or distribution 
is void. (^) So also an attempt by a Hindu to create any estate, — 
such for instance, as an estate tail, — ^which is unknown and 
repugnant to the Hindu law, is void.{j) The Hindu disposition 



(a) See Attorney-General v. Pearson, 
3 Mer., 399 ; Hamilton v. Waring, 
2 Bligh., 209 ; Earl of Kingston v. Lady 
Pierepont, 1 Vem., 5 ; Thornton v. 
Howe, 31 Beav., 114 ; Smith v. White, 
L. E., 1 Eq., 626. 

(6) Ex parte Dyster, 1 Mer., 172. 
See Re Dugdale, 38 Cli. D., 176; 
Braithwaite v. Attorney-General (1909), 
1 Ch., 510. 

(c) Ourtis V. Perry, 6 Ves., 739. 

[d) Ghilders v. Ghilders, 3 K. and J., 
310 ; 1 De G. and J., 482 ; Ashworth v. 
Hooper, L. R., 1 C. P. D., 178. 



(e) 33 Beav., 81. 

(/) 3 Y. & J., 163. 

(g) See Rex v. Partington, 1 Salk., 
162 ; Adlington v. Cann, 3 Atk., 154. 

(h) Stone v. Lidderdale, 2 Anst., 
533. 

(i) Holmes v. Goodson, 8 De G. M. 
& G., 152 ; Re Wilcock's Settlement, 
1 Ch. D., 229 ; Re Dixon, Dixon \. 
Charlesworth (1903), 2 Ch., 458. 

(j) Soorjeenumey Dossee v. Deno- 
bundoo Mulliclc, 6 Moo. I. A., 526 ; 
Jatindra Mohan Tagore v. Oanendra 
Mohan Tagore, 9 B. L. R., 377 ; Shoshi 



Lee. I.] ILLEGAL TRUSTS. 3S 

of property Act, 1916, however enacts that subject to the 
limitations therein contained "no disposition of property by a 
Hindu, whether by transfer inter vivos or by will shall be invalid 
by reason only that any person for whose benefit it may have 
been made was not in existence at the date of such dis- 
position."(a) 

Among trusts which, according to English law, are void as 
being contrary to public policy, may be mentioned those _ , 
to provide for future illegitimate children. Such trusts future aie- 
are held to be void, because they tend to encourage immoral- gitimate 
ity. The law on this point, so far as regards persons children, 
subject to English law, will be found in the case of Occleston v. 
Fullalove.Q)) 

There a testator, who had gone through the ceremony of 
marriage with Margaret Lewis, his deceased wife's sister, who 
had two daughters, Catherine and Edith, by him, and who was 
enceinte with a third at the date of the will, gave a moiety of his 
property to trustees in trust for Margaret Lewis for life, and after 
death, for his reputed children Catherine and Edith, and all other 
children which he might have or be reputed to have by Margaret 
Lewis, then born or thereafter to be born. The third child, Mar- 
garet, was born before the testator's death, and was acknowledged 
by him as his child. Wickens, V. C, considering that the case 
was governed by the decision in Pratt v. Mathew{c), held that 
Margaret was not entitled to share in the testator's property. On 
appeal, Lord Seiborne, L. C, differing from James and Mellish, 
L. JJ., agreed with the decision of Wickens, V. C, thinking that 
he was bound by the authorities. The Lords Justices, however, 
held, that there was nothing in the authorities to prevent a child 
coming into existence between the date of execution of the will 
and the death of the testator from taking under the will, and that 
Margaret was entitled to share. 

The principle of the decision is, that a gift by a testator or 
testatrix to one of his or her children by a particular person, is 
perfectly good, if the child has acquired the reputation of being 
such a child as described in the will before the death of the testator 
or testatrix. ((Z) 



V. Tarokessur, 6 Cal., 421 ; on appeal, Thomas, 27 I. R., 457 ; see iJe Harrison, 

10 Cal., 952, P. 0. ; Suryarao v. Ownga- Harrison, v. Higson (1894), 1 Ch. 561. 

dhara, 13 I. A., 97 ; Kristaromoney v. (c) 22 Beav., 328. 

Narendro, 16 Cal., 383 P. 0. ; also (d) In re Ooodwin'a Trust, L. R., 

Onanasambandha v. Velu, 23 Mad., 17 Eq., 346. See d.\BO Ellis v. Houston, 

271 P. 0. (case of a heriditary office). L. R., 10 0. D., 236 ; Megson v. Hindle, 

{a) Act SV of 1916, s. 2. For a L. R., 15 C. D., 198. See also Be 

similar provision, see Madras Act I of Hasties' Triists, 35 Ch. D., 728 ; Re 

1914. Homer, \ I Ch. D., 695 ; Re Loveland 

(b) L. R., 9 Ch., 147 ; Thompson v. (1906), 1 Ch., 542. < 

A, LT 3 



34 ILLEGITIMATE CHILDEEN. [LeC. I. 

But a trust for an illegitimate child in being, or en ventre sa 
mere, at the time of the creation of the trust, is good if the 
m"wimate ^^^^^ ^^ clearly designated as the object of the gift, (a) 
cwfdrenin "In order," said Stuart, V. 0.(6), "that any legatee — 
being, or whether the legacy be to a class or to an individual — may 

en ventre take, it is necessarv that the person or the class should be 

clearly described. Where a gift is made to a child or to 
children as a class, the natural and proper meaning of the word 
' child ' or ' children ' is legitimate child or legitimate children ; 
but if the object of the gift is clearly described and clearly 
ascertainable from the words of the will, it matters nothing 
whether the object of the gift be legitimate or illegitimate, because 
an illegitimate child, or a number of illegitimate children as a 
class, if properly described, may be a legatee or legatees just as 
well as legitimate children. "(c) It is merely a question of designa- 
tion. (tZ) The principle which may fairly be extracted from the cases 
upon the subject is this, the term ' children ' in a will prima facie 
means legitimate children ; and if there is nothing more in the 
will, the circumstance that the person whose children are referred 
to has illegitimate children will not entitle those illegitimate 
children to take. But there are two classes of cases in which that 
prima facie interpretation is departed from. One class of cases is, 
where it is impossible from the circumstances of the parties that 
any legitimate children could take under the bequest. The other 
class of cases is, where there is, upon the face of the will itself, 
and upon a just and proper construction and interpretation of the 
words used in it, an expression of the intention of the testator to 
use the term ' children ' not merely according to its prima facie 
meaning of legitimate children, but according to a meaning which 
would apply to, and would include, illegitimate children, (e) In 
order to interpret the words of the will, it is always not only 
allowable, but it is the duty of the Court, to obtain the knowledge 
which the testator had of the state of his family, so as to 
ascertain whether the testator intended illegitimate children to 
take under general expressions used in the will.(/) 

A trust for a purpose which is forbidden by law is unlawful. 
Trust forbid- As an example may be mentioned section 13 of Beng. 
den by law. Regulation of 1793, which forbids OoUectors from conferring 



(a) Medworth v. Pope, 27 Beav., 71 ; 7 Eq., 176. 

Ebbern v. Fowler (1909), 1 Ch., 578 (d)LepTOe v. JBea»i,L. R., 10 Eq., 160. 

[overruling Ee Shaw (1894), 2 Ch., (e) Bill v. Crook, L. R., 6 E. & I., 

513]. App. 265, per Lord Cairns. See also 

(6) Holt V. Sindrey, L. R., 7 Eq., In re Brown's Trust, L. R., 16 Eq., 

173 ; Be Harrison (1894), 1 Ch., 561 ; 239. 

Be Du Bochet (1901), 2 Ch., 441. (/) Hill v. Crook, L. R., 6 E. & I., 

(c) See also Clifton v.Ooodbun, L. R., App., 265 ; Dorin v. Dorin, L. R., 7 E. 

6 Eq., 278 ; Savage v. Boberlson, L. R., & I., App., 668. 



Lee. I.] ACCUMULATIONS. 35 

on their public officers any private trust relating to their personal 
concerns, (a) 

Another class of trusts, which are void as being against public 
policy, are those in which an attempt is made to postpone 
the enjoyment of property for an indefinite period, or to Trusts 
prevent the alienation of property for ever. Such trusts enjoyment 
are considered to be injurious to the good of the State, of property 
and will not be enforced. (6) "A perpetuity," said Lord prrestrain- 
Guildford(c), " is a thing odious in law, and destructive t"^„^ '^"^" 
to the commonwealth : it would put a stop to commerce, 
and prevent the circulation of the riches of the kingdom; and 
therefore is not to be countenanced in equity."(rf) 

In England the rule is, that no remainder can be given to the 
unborn' child of a living person for his life, followed by a remainder 
to any of the issue of such unborn person, the latter of such re- 
mainders being absolutely void.(e) The effect of this rule is to 
iorbid the tying up of lands for a longer period than can elapse 
until the imborn child of some living person shall come of age ; 
that is, for the life of a party now in being, and for twenty-one 
years after, with a further period of a few months during gestation 
supposing the child should be of posthumous birth. In analogy, 
therefore, to the restriction thus imposed on the creation of con- 
tingent remainders, the law has fixed the following limits to the 
•creation of executory interests : it will allow any executory estate 
to commence within the period of any fixed number of now-existing 
lives, and an additional term of twenty-one years ; allowing further 
for the period of gestation, should gestation actually exist. This 
additional term of twenty-one years may be independent or not 
of the minority of any person to be entitled(/) ; and if no lives are 
fixed on, then the term of twenty-one years only is allowed, (gr) By 
the Statute 39 & 40 Geo. Ill, c. 98(h), the accumula- 
tion of income is forbidden for any longer term than the ^g^^^^^^' 
life of the grantor or settlor, or twenty-one years from the 
death of any such grantor, settlor, devisor, or testator, or during 

(a) See also the Indian Contract Act create perpetuities by the creation of 

(IX of 1872) ss. 26 — 28, which declares terms, see Floyer v. Bankes, L. B., 

agreements in restraint of marriage, 8 Eq., 115; Sylces v. Sykes, L. R., 

trade or legal proceedings to be void. 13 Eq., 56. 

(6) See the Duke of Norfolk's case, (e) Hay v. The Earl of Coventry, 

3 Ch. Ga., 20, 28, 35, 48 ; I'atma Bibi 3 T. R., 86 ; Brudenell v. Elwes, 1 East, 

«. Advocate-General of Bombay, 6 Bom., 452; Cole v. Sewell, 2 H. L. C, 186; 

42 ; Limji v. Bapuji, 11 Bom., 447. See Moneypenny v. Bering, 2 D. M. G., 145. 

Transfer of Property Act (IV of 1882) (/) CadeZZ v. PaZmer, 7 Bligh,N. S.,202. 

o. 14. (g) Attorney-General v. Poulden, 

(c) Duke of Norfolk v. Howard, 1 3 Hare., 555. 

Vem., 164. See also Edwards v. (A) See also the Accumulation Act, 

Edwards (1909), A. C, 275 ; Be Moofe, 1892 (55 & 56 Vic, c, 58, s. 1), prohi- 

_Prior V. Moore (1901), 1 Ch., 936. biting the accumulation of rents and 

(d) For instances of attempt to profits of land. 



36 sucoESSioK ACT. [Lec- 1. 

the minority of any person living, or en ventre sa mere, at the death 
of the grantor, devisor or testator, or during the minority only of 
any person who, under the settlement or will, would for the time 
being, if of full age, be entitled to the income so directed to be 
accumulated, (a) The law was the same as regards trusts created 
by will in India up to the passing of the Indian Succession 
Act, X of 1865. By section 101 of that Act it is provided as 
follows : — 

" No bequest is valid whereby the vesting of the thing bequeathed may 
be delayed beyond the lifetime of one or more persons living at the testator's 
decease, and the minority of some person who shall be in existence at the 
expiration of that period, and to whom, if he attains full age, the thing 
bequeathed is to belong. (6) 

I Illustrations, 

{a) A fund is bequeathed to A for his life, and after his death to B for 
his life, and after B's death, to such of the sons of B as shall first attain the 
age of 25. A and B survive the testator. Here the son of B, who shall 
first attain the age of 25, may be a son born after the death of the testator -y 
such son may not attain 25 until more than 18 years have elapsed from the 
death of the longer liver of A and B ; and the vesting of the fund may thus 
be delayed beyond the lifetime of A and B, and the minority of the sons 
of B. The bequest after B's death is void. 

(&) A fund is bequeathed to A for his life, and after his death to B for 
his life, and after B's death to such of B's sons as shall first attain the age 
of 25. B dies in the lifetime of the testator, leaving one or more sons. In 
this case the sons of B are persons living at the time of the testator's decease, 
and the time when either of them will attain 25 necessarily falls within his 
own lifetime. The bequest is valid. 

(c) A fund is bequeathed to A for his life, and after his death to B for 
his life, with a direction that, after B's death, it shall be divided amongst 
such of B's children as shall attain the age of 18 ; but that if no child of B 
shall attain that age, the fund shall go to G. Here the time for the division 
of the fund must arrive at the latest at the expiration of 18 years 
from the death of B, a person living at the te-tator's decease. AH the 
bequests are valid. 

(a) See Shookmoy v. Monohari, from the property shall bs accumu- 

II Cal., 684 P. C. ; Bai Kishori v. lated, such direction shall be void, and 
Debendranath, 15 Cal., 409 P. C. ; the property shall be disposed of as if 
Bajendralal V. Baj Goomari, 34 Cal., no accumulation had been directed. 
5; Amritolalv. Surnomani, 23 Cal., Exception. — Where the property is 
662 ; Baneemoney v. Premmoney, 9 immoveable, or where accumulation is 
C. W. N., 1033; Nafar Ghandra v. directed to be made from the date of 
Batan Mala, 15 C. W- N-, 66; the transfer, the direction shall be 
Vullvihdas v. Oordhamdas, 14 Bom. , valid in respect only of the income 
360 ; Jamma Bai v. Dharsey, 4 Bom. , arising from the property within one 
L. R., 803; Sarojini v. Oanendra, year next following such date ; and at 
23 0. L- J., 24. As to accumulations the end of the year such property and 
for the benefit of a minor beneficiary, income shall be disposed of respectively 
see Indian Trusts Act, s. 41 ; see as if the period during which the aocu- 
Oosard v. Bivett-Garnal, 13 Bom., 463. mulation has been directed to be made 
The Transfer of Property Act, (IV of hjid elapsed. 

1882), 3. 18, enacts : — (6) See Soudaminey v. Jogesh, 2 Cal., 

Where the terms of a transfer of 262 ; Banganadha v. Bhagirathi, 29 
property direct that the income arising Mad., 412. 



Lee. I.] PERPETUITIES AMONG HINDUS. 37 

{d) A fund is bequeathed to trustees for the benefit of the testator's 
daughters, with a direction that if any of them marry under age, her share 
of the fund shall be settled so as to devolve after her death upon such of her 
children as shall attain the age of 18. Any daughter of the testator to whom 
the direction applies must be in existence at his decease, and any portion 
of the fund which may eventually be settled as directed, must vest not later 
than 18 years from the death of the daughter whose share it was. All these 
provisions are valid." 

The rule in this section, it will be seen, does away altogether 
with the absolute term of twenty-one years, and, owing to the 
definition of minority, reduces to eighteen years (or to eighteen 
and the period of gestation when the person in being is unborn) 
the twenty -one years which went to make up the period according 
to the English law. (a) This section of the Successidn Act(6) applies 
to Hindus, Jains, Sikhs, and Buddhists. 

According to Hindu law, a perpetuity, save in the case of 
religious and charitable endowments, is illegal, (c) Thus 
trusts to accumulate property for ninety -nine years((i), Perpetuities 
to accumulate until the fund reached three lakhs{e), and Hindi^ 
to postpone enjoyment until the testator's children 
reached the age of twenty-one(/), have been held to be void ; 
and the rule cannot be avoided by means of a colourable 
dedication to an idol.(g') The law of wills among Hindus is 
analogous to the law of gifts ; a person capable of taking under 
u will must be such a person as could take a gift inter vivos, and 
therefore must either in fact or in contemplation of law be in 
existence at the death of the testator, and therefore a gift to 
an unborn child, except in the case of an infant in the womb. 



(a) Stokes's Succession Act, 82. Ananda Krishna Base, i B. L. R., 

(6) C/. Act XXI of 1870, 0. C, 231. 

s. 2. (/) Sm. Bramamayi Dasi v. Joges 

(c) See Transfer of Property Act Chandra Dutt, 8 B. L. R., 400 ; Colly- 
\Vf of 1882), s. 14 ; Indian Succession nath v. Chundernauih, 8 Cal., 378 ; 
Act (X of 1865), s. 101. Ramasami v. Lloyd v. Webb, 24 Cal., 44 ; Oosavi v. 
■Chinnan, 24 Mad., 449; Eolathu v. Biverl, 13 Bom., 463; Husenboy v. 
iJamjo, 38 Mad., 114 ; iaWi Mohan v. Ahmedboy, 26 Bom., 319." As to 
-Chukhan Lai, 2iGa.\.,&Zi, P.O. The contracts, see Kolathu v. Manga, 38 
rule applies both to moveables and Mad-, 114; Baja of Karnetnagar v. 
immoveables ; Hoari v. 0«6or7ie, L. R., Velayuda, 1 M. L. T., 83; Avula 
1 Eq., 585, Cooper v. Laroche, 17 Ch. v. Marriboyina, 18 M. L. T., 86; 
D., 368 ; Cowasji Nowroji v. Bustomji, Mathewson v. Bam Kanai, 36 Cal. , 
20 Bom., 511 ; see Charamvdi v. Mar- 675 ; Chiramudi v. Marriboynia 
.riboyina Baghavulu, 39 Mad., 462 (an Raghavalu, 39 Mad., 462 ; Shazadi v. 
agreement to sell is not within the Sheikh, 17 0. W. N., 1053; as to 
rule). powers, see Sivasankara v. Subra- 

(d) Kiimara Asima Krishna Deb v. manya, 31 Mad., 517 ; as to vested 
Kumara Kumara Krishna Deb, 2 B. L. interest, see Turney v. Turney (1899), 
R., O. C, 11. See also .dmnto ioZ V. 2Ch., 739; Bhodes v. Padmanabha, 
Surmomoyee, 24 Cal., 589 ; on appeal, 1914 M. W. N., 921. 

25 Cal., 662 ; on further appeal, 27 {g) Promotho Dossee v. Badhika 

•Cal., 996 P. C. Persaud Dutt, 14 B. L. R., 175. 

(e) Sm. Krishnaramani Dasi v. 



38 EESTEAINT ON ALIENATION. [LCC. I. 

or an adopted son, is void, (a) And what cannot be done by a 
gift, cannot be done by the intervention of a trust. (&) So a 
trust for the maintenance of a family for ever is void.(c) But 
a father may delay the rights of his issue by interposing a valid 
estate previous to theirs, (ci) 

It is against the policy of the law to permit a trust to be 
. created with a condition restraining alienation of the 

aUen^ion°" interests of the cestui que trust generally. For instance, 
a devise to trustees upon trust for daughters for their 
"separate and inalienable use" is too remote and void.(e) 
And such a restriction is void by both Hindu and Mahomedan 
law. Thus, when a father, during his son's minority, gave certain 
property to him, and on delivery of possession got feom him a 
document stipulating that he would not alienate the property, 
and that, on his death the property shoidd return to the father, — 
it was held, that the condition against alienation was absolutely 
void.(/) So, trusts prohibiting or restricting the right of partition 
are void.(5f) Alienation to a particular person may be restrained, 
but alienation generally, being repugnant to the estate, cannot. (A) 
So a trust may be created in favour of a man, to determine and go 
over on his bankruptcy(i), but a trust to continue after bankruptcy 
would be void.(_j") For instance, a proviso in a will that the cestui 
que trust shall not have power to sell, mortgage or anticipate the 
income of the trust- fund, will not prevent the assignee from taking 



(a) Jatindra Mohan Tagore v. Ganen- Cooper v. Laroche, 17 Ch. D., 368 ; Re 
dm Mohan Tagore, 9 B. L. R., 377 ; Dugdale, 38 Ch. D., 176; jBe Mabbett, 
Soudaminey Dossee v. Jogesh Chunder (1891), 1 Ch., 707 ; Be Ross (1900); 
Dutt, 2 Cal., 262 ; Bhoobun MoKmi 1 Oh., 162 ; Ananta v. Nagamuthu, 4 
Debia v. Hurish Chunder Chowdhry, Mad. , 200 ; Mahram Das v. Ajudhia, 
4 Cal., 27; Klierodemoney Dossee v. 8 AH., 452 ; Lalit Mohan v. Chukkun, 
Doorgamoney Dossee, 4 Cal., 455; 24 Cal., 834 P. C. In the case of endow- 
Chundramoney Dossee v. Moiilal ments, see Shri Ganesh v. Kesharav, 
Mullick, 5 Cal., 496; Javerbi v. 15 Bom., 625. For cases of mortgages, 
Kablibai, 16 Bom., 492 ; Bai Motivahu see Venixita v. Kannam, 5 Mad., 184;. 
V. Bai Mamubai, 21 Bom., 709 P. C, of leases, see Abhiram v. Shyama, 
Chundi Churn v. Rani Siddheswari, 36 Cal., 1003 P. C. 

16 Cal., 71 P. C. ; also Harilal v. Bai ( /) Nabob Amiruddaula Muhammad 

Moni, 29 Bom., 351. v. Nateri Srinivasa Charlu, 6 

(b) Krishnaramani Dasi v. Ananda M. H. C. R., 356. See Kumara Asima 
Krishna Bose, 4 B. L. R., 0. C, 231 ; Krishna Deb v. Kumara Kumara 
Rajender Dutt v. Sham Chand Mitler, Krishna Deb, 2 B. L. R., 0. C, 25 ; 
6 Cal., 106 ; Kally Prosono Mitter v. Nitai Charan Pyne v. Sm. Ganga 
Gopee Nauth Kur,\ 7 Cal, 241. Dasi, 4 B. L. R., 0. C, 26» ; Promotho 

(c) Chundramori^y Dossee v. Motilal Dossee v. Radhika Pershaud Dutt, 14 
Mullick, 5 Cal., 496. B. L. R., 176. 

(d) Hurrosoondery v. Cowar Kislo- {g) Mayne's Hindu Law, ss. 426, 486. 
nauth, Pult., 393. (h) Co. Litt., ss. 360, 361, 362. 

(e) Armitage v. Coates, 35 Beav., 1 ; (i) Brandon v. Robinson, 18 Ves., 
In re Cunynghame's Settlement, L. R., 433. 

llEq., 324; In re Teague's Settlement, (j) Graves v. Dolphin, 1 Sim., 66. 

L. R., 10 Eq., 564. See Transfer of See also Re Fitzgerald (1903), 1 Ch.,. 

Property Act (IV of 1882), ss. 10, 11 ; 933 ; (1904) 1 Ch. (C. A.), 573. 



Lee. L] INSOLVENCY. 39 

the income on the bankruptcy of the cestui que trust.(a) Such a 
condition is inconsistent with, and repugnant to, the gift. It is 
one of the incidents of property that it shall vest in the assignees 
of a bankrupt for the benefit of his creditors, and this incident 
cannot be taken away by the author of the trust. (&) So the 
right of alienation is one of the incidents of the absolute _ 
ownership of property ; and therefore, if an absolute gift restraining 
without the intervention of trustees is followed by a alienation 
condition restricting the right of alienation, the condition ^f*^"" ^^^°- 
ig wholly void, (c) lute gift. 

Where trustees have a discretion as to the manner of the 
application of the trust-fund for the benefit of the cestui 
que trust, but no power to apply it otherwise than for his "^° vency, 
benefit during his life, the discretion is a discretion subject to the 
incidents of property, and is consequently terminable upon the 
insolvency of the cestui que trust. The life-interest enures for the 
benefit of the creditors, and any attempt to continue the insolvent 
in the enjoyment of the property is in fraud of the law.{d) 

But where a testatrix bequeathed a share of her residue in 
trust for her nephew for life, and by a codicil, after reciting that 
her nephew had become bankrupt and insane, she directed the 
trustees to apply during his life the whole or such part of the 
interest of the fund, at such times, in such proportions, and in such 
manner, for the maintenance and support of her nephew, and 
for no other purpose whatsoever, as they, in their discretion, should 
think most expedient, — it was held, that the nephew's assignees 
were not entitled to any portion of the provision made for him. 
The cases of Green v. Spicer{e), Snowdon v. Dales{f), and Piercy v. 
Roherts(g), were distinguished, on the ground, that in those cases 
the gift took efEect before the donee became bankrupt, and the 
income of the fund was either to be paid to the donee or to be applied 
for his benefit generally. Whereas in the case now under consider- 
ation, the trustees were only to apply such sums as they thought 
fit for maintenance and support, there was a trust created for the 
mere special purpose of supporting and maintaining the nephew, 
and under such a trust the assignees could take no interest, (fe) ' 



f (a) Green v. Spicer, 1 R. & M., 395 ; 395 ; Piercy v. Roberts, 1 M. and K., 4 ; 

Snowdon v. Dales, 6 Sim., 524. Snowdon v. Dales, 6 Sim., 524 ; 

(6) Brandon v. Robinson, 18 Ves., Tounghusband v. Oisborne, 1 Coll., 

433 ; Bird v. Johnson, 18 Jur., 976. 400. 

(c) Bradley v. Peixoto, 3 Ves., 324; (e) 1 R. andM., 395. 
Ross V. Ross, 1 Jac. & W., 154 ; Ware {f) 6 Sim., 524. 

V. Cann, 10 B. and C, 433 ; Hood v. (g) I M. and K., 4. 

Oglander, SiBeav., 513; Hunt-Foulston (h) Twopeny v. Peyton, 10 Sim., 

V. Furber, L. R., 3 C. D., 285 ; Re WoU- 487. See Re Sanderson's Trust, 3 K. 

tonholme, 29 W. R., 414. and J., 497 ; Re Stanger, 39 W. R., 

(d) Green v. Spicer, 1 R. and M., 455 ; Re Bullock, 39 W. R., 472. 



40 iNSOLVENOY. [Lec. I- 

If a trust is created for the benefit of two or more persons, 
and one becomes bankrupt or insolvent, the assignee will be entitled 
only to his proportionate part. In Page v. Way (a) freehold and 
personal property belonging to the husband was conveyed to trustees 
upon trust to receive the rents and profits, " and pay and apply 
the same when received, unto or for the maintenance and support 
of the husband, his wife, and children, or otherwise if the trustees 
should think proper, to permit the same to be received by the 
husband during his life, without power to charge or anticipate." 
The husband became bankrupt, and in a suit by the assignees 
claiming the whole income of the trust-property, — ^it was held, 
that a trust had been created for the maintenance and support 
of the wife and children out of the property during the husband's 
life. Lord Langdale, M. E., said : — " I am of opinion that, so 
long as the wife and children were maintained by the husband, 
the trustees had a discretion to give him the whole income, but 
that it was their duty to see that the wife and children were main- 
tained. The assignees take everything subject to what is proper 
to be allowed for the maintenance of the wife and children." 
Again, where property was vested in trustees upon trust to pay the 
rents and profits to a certain person for life, provided that, if he 
became bankrupt, the trustees should apply the rents and profits 
in or towards the maintenance, clothing, lodging, and support of 
the cestui que trust, and his then or any future wife and his children, 
or any of them, as the trustees should, in their discretion, think 
fit, — ^it was held, on the bankruptcy of the cestui que trust, that his 
life-estate was forfeited at the time of his discharge, — that, from 
the date of the vesting order to the time of the discharge, the rents 
and profits of the estate belonged to the assignee ; that, upon 
the discharge taking place, the discretionary powers given to the 
trustees by the settlement might be exercised by them in favour 
of the insolvent, his wife, and children collectively, or in favour 
of any of those persons to the exclusion of the others, — and that to 
whatever extent the power might be exercised in favour of the 
insolvent, the benefit which he would take by the appointment 
would vest in the assignee. (&) 

Again, where a testator bequeathed his residuary estate to 
trustees, and, after making a provision out of it, for the benefit 
of his son and for his life, and, after the son's death, for his wife 
and children, directed that, if his son should assign or charge the 
interest to which he was entitled for life, or attempt or agree to do 
any act whereby the same, or any part thereof, might, if the 
absolute property thereof were vested in him, be forfeited to, or 
become vested in, any person or persons, then the trustees should 



(a) 3 Beav., 20. 98. See also Holmes v. Penney, 3 K. 

(6) Lord V. Burn, 2 Y. and 0. C. C, and J., 90. 



Lee. I.] INSOLVENCY. 41 

pay and apply the said interest for the maintenance and support 
of his son and of any wife and child or children he might have, as 
the trustees in their discretion should think fit, — ^it was held, on 
the ba,nkruptcy of the son, that the trust for the benefit of the 
son; his wife, and children was valid, and that the assignees were 
not entitled to any part of the provision. Shadwell, V. C., said : — 
" There is nothing in point of law to invalidate such a gift that I 
am aware of. It does not follow that anything was of necessity 
to be paid ; but the property was to be applied ; and there might 
have been a maintenance of the son, and of the mfe, and of the 
children, without their receiving any money at all. For instance, 
the trustees might take a house for their lodging, and they might 
give directions to tradesmen to supply the son and the wife and 
the children with all that was necessary for maintenance : and, 
therefore, my opinion is, that I am not at liberty to take this as a 
mere gift for the benefit of the son simply. ; but it is a gift for his 
benefit in the shape of maintenance and support of himself jointly 
with his wife and children : and if that is the true construction of 
the gift in question, the result is, that the assignees are not entitled 
to anything."(a) In Kearsley v. Woodcock(h), Wigram, V. C, in 
a similar state of circumstances said, that it was not of necessity 
that any part of the trust-funds, under such a gift, must be applic- 
able for the separate benefit of the bankrupt ; the whole property 
might not be more than sufficient for the support and maintenance 
of the ^\ife and children ; and the benefit which the bankrupt 
derived from the property might not be capable of severance ; it 
might be of such a land that no definite portion of the principal 
or income could, in respect thereof, be diverted from its application 
for the benefit of the other members of the family, e.g., the joint 
occupation of a house, which was necessary for the habitation of 
the wife and children, the expense of which was not increased by 
the circumstance, that it was also the abode of the bankrupt, (c) 

A trust for the benefit of a person until his bankruptcy or 
insolvency, then in the discretion of the trustees for the subsistence 
of himself and family, was held in Rvfpon v. Norton{d), on the 
insolvency taking place, to entitle his three children to three- 
fourths of the fund, and the assignees to the remaining fourth. 
This case goes further than Page v. Way{e) and Kearsley v. Wood- 
•cock.{f) In Wallace v. Anderson(g), the trustees were, after the 
bankruptcy of the husband and the death of the wife, to pay the 
income in such manner, for the maintenance and support, or 



(a) Godden v. Growhurst, 10 Sim., 39 Cli. D. (C. A.), 443; Me Bullock, 

«42. 39 W. R., 472. 

(6) 3 Hare, 185. (d) 2 Beav., 63. 

(c) See also Wallace v. Anderson, (e) 3 Beav., 20. 

16 Beav., 533. In re London's Trusts, ( / ) 3 Hare., 185. 

40 L. T. N. S. Oh., 370 ; Re Oolemm, (g) 16 Baav., 633. 



42 BANKRUPTCY OR INSOLVENCY. [LCC. I. 

otherwise for the benefit of the husband and the issue, as they might 
think proper. It was held, that the discretionary power of the 
trustees, as to the application of the income, was not taken away 
by the bankruptcy, so as to entitle the objects to take equally. An 
inquiry was directed as to what had been properly applied for the 
maintenance of the issue, and the assignees were declared to be 
entitled to the surplus. Eomilly, M. R., said : — " I am not satisfied 
that the point which has arisen in the present case was argued in 
Rippon V. Norton.{a) To say that the discretion of the trustees 
as to the application of the income was gone by the bankruptcy, 
is to say that it never arose, and the object of the trust would 
thereby be defeated. I am not sure that the Court would not, in 
a case like the present, follow the rule laid down in Kearsley v. 
Woodcock." (b) 

Although, as appears from the above authorities, a trust 
Trust to restraining alienation of the interests of the cestui que 

cease on trust generally, or attempting to continue the interest of 

bank- the cestui que trust after his bankruptcy, is void, yet there 

insolvencv ^^ ^^ objection to a trust to determine, in case the cestui 
que trust shall become bankrupt or insolvent(c), or shall 
attempt to assign or incumber his interest. («!) The interest of 
the cestui que trust in such" a case determines as soon as the act 
forbidden is done, even though the interest is still in expectancy. 
Thus, where property was settled in the year 1823 on a wife for 
life, with remainder to the husband, " until he should make any 
composition with his creditors for the payment of his debts,, 
although a commission of bankruptcy should not issue against 
him ; " and in 1842, the husband's principal creditors agreed to 
take a composition on their debts secured by bills, and the wife 
did not die until 1852, — it was held, that the composition, though 
it was not made with the whole of the husband's creditors, and 
was made during the wife's life, and did not affect the trust- 
property, nevertheless operated as a forfeiture of the husband's 
interest, (e) So the interest will determine upon the execution of 
a composition-deed by the cestui qui trust, even though he does 
not become bankrupt or insolvent, or execute any assignment of 
the property for the benefit of his creditors. (/) If a sum of money 
is left for the purpose of purchasing an annuity for a particular 
person, with a condition that it shall determine if the annuitant 

(a) 2 Beav., 63. Trusts, 28 Ch D. (C. A.), 523 ; Metcalfe 

(6) 3 Hare, 185. v. Metcalfe, 43 Ch. D., 633 (1891) ; 

(c) Lockyer v. Savage, 2 Str., 947 ; 3 Ch. (C. A.), 1. 

Ex parte Oxley, 1 B. and B., 257 ; Ex (d) Stanton v. Hall, 2 R. and M., 

parte Hinton, 14 Ves., 598 ; Cooper v. 175 ; Stephens v. James, 4 Sim., 499 ; 

Wyatt, 5 Mad., 482 ; Tarnold v. Moore- Oldham v. Oldham, L. R., 3 Eq., 404. 

house, 1 R. and M., 364; Lewes v. (e) Sharp v. Cosserat, 20 Benv., ilO. 

Lewes, 6 Sim., 304; In re Aylwin's (/) Billson v. Crofts, L. R., 15 Eq.,. 

Tmsls, L. R., 16 Eq., 585 ; i?e Bedson's 314. 



Lee. I.] FOEFEITUEB. 43 

shall at any time sell, assign, incumber, or in anywise dispose of 
or anticipate the same, the annuitant will not be entitled to the 
value of the annuity, (a) The rules to be followed in determin- 
ing questions of this class were thus laid down by Turner, V. C, 
in Rochford v. Hackman{b) : First, that property cannot be 
given for life any more than absolutely, without the power of 
alienation being incident to the gift ; and that any mere attempt 
to restrict the power of alienation, whether applied to an absolute 
interest or to a life-estate, is void, as being inconsistent with 
the interest given ; and secondly, that although a life-interest 
may be expressed to be given, it may be well determined by an 
apt limitation over. And he also expressed an opinion that the 
life-interest might be well determined by a proviso for cesser, 
although it be not accompanied by any limitation over, for no 
greater efEect could, he thought, be given to a limitation over than 
to an express declaration that the life-interest should cease. This 
latter point was expressly decided by Wood, V. C, in Joel v. Mills, {c) 

A clause providing for the determination of the interest of 
the cestui que trust upon the happening of a particular jj.^gj^Q 
event within a specified time, whether the time is certain cease on 
or uncertain, is good, e.g., a clause providing against happening 
disposition during the life of a third person(c?), or before "^J'j^/'''^"'^'' 
attaining a certain age.(e) 

When property is settled on A for life, and after her death 
on B for life, until he shall become insolvent, and then over, the 
gift over takes effect on B's insolvency in A's lifetime. (/) 

Clauses of forfeiture will be construed strictly, and therefore 
the very act provided against must have been done.(5') clauses o£ 
Thus a proviso giving property over, if the cestui que trust forfeiture 
should alienate, or attempt to alienate it, does not come construed 
into effect on his bankruptcy, which is an alienation by ^ ""^ ^' 
operation of law, and not a voluntary act.(^) It would, however, 
come into effect if he presented a petition in insolvency; 
and the penalty of forfeiture on bankruptcy is not incurred by a 
composition with creditors, (i) The words of the clause, however, 
may be so wide as to show that the author intended that it 
should come into effect upon the cestui que trust doing any act 
which would affect the life-estate, (y) 



(a) Hatton v. May, L. E., 3 C. D., Re Porter (1892), 3 Ch., 481 ; Adams v. 

148. Adams (1592), 1 Ch., 369. 

lb) 9 Hare, 480. (h) Lear v. Leggett, 2 Sim., 479 ; 

(c) 3 K. and J., 458. Whitfield v. Prickett, 2 Keen, 608. 

(d) Kearsley v. Woodcock, 3 Hare, (J) Montefiore v. Enthoven, L. R., 
185. 5 Eq., 35. See Re Carew (1896), 2 Ch. 

(c) Ghurchillv. Marks, 1 Coll., 441. (C. A.), 311 (Bankruptcy annulled as 

(/) Re Muggeridge's Trust, Johns., a mere device did not work forfeiture). 

625 (i) Ex parte Eyston,'L.B,.,T C. D., 

(g) See Re Wormald, 43 Oh. D., 631; 145. 



44 



TRUST FOR IMMORAL PURPOSES. 



[Lee, I. 



So the giving of a warrant of attorney will not work a forfeiture, 
unless done as a contrivance to evade the prohibition against 
alienation(a) ; nor, even in England, will the marriage of a feme 
sole cause a forfeiture of an annuity which is to determine upon 
the annuitant's doing any act by which the property " should be 
vested or become liable to be vested in any other person. "(&) So 
a charge on arrears of an annuity is good(c), or a charge on the 
income as it accrues, (ci) 

A general assignment of property will not include property 
liable to forfeiture, (e) 

Where there is a clause of forfeiture on bankruptcy, and the 
cestui que trust becomes bankrupt, and the bankruptcy is annulled 
before any beneficial interest in the property has come to the 
assignee, the clause will not take effect. (/) 

The presentation of a petition in insolvency by the insolvent 
himself is a voluntary act, and as the property of the insolvent 
vests in the Official Assignee, the presentation of a petition would 
be an alienation of his property, and would work a forfeiture. (^) 

The owner of property, whether moveable or immoveable, 
cannot create a trust of it for his own benefit to go over in ease 
of his bankruptcy or insolvency, (fe) 

immoral ^^^ trust, as well as any contract for immoral pur- 

purposes, poses, is of course void.(i) 

If the purpose for which the trust is created fails, because it is 
unlawful or fraudulent, a Court of Equity will not act. 
It cannot enforce the trust in favour of the cestui que trust, 
for that would be to declare the trust to be good ; and it 



Failure of 
■trust. 



(a) Avison v. Holmes, 1 J. and H., 
530 ; Barnett v. Blake, 2 Dr. and Sm., 
117 ; Montefiore v. Beheens, 35 Beav., 
95. Re Kelly's Settlement, West v. 
Turner, 59 L. T. N. S., 497 ; See Lock- 
wood V. SiJces, 51 L. T. N. S., 562 ; 
Ee Tancred's Settlement (1903), 1 Ch., 
715. 

(6) Bonfield v. Harsell, 32 Beav., 
217 ; see, however, Craven v. Bradley, 
L. R., 4 Ch. App., 296 ; also the Married 
Women's Property Act, 1882 (45 & 46 
Vic. c, 75), and Act III of 1874. 

(c) Be Stretz'a Trusts, 4 D. M. G., 
404. 

(d) Cox V. Bockett, 35 Beav., 48; 
Hurst V. Hurst, 21 Ch. D. (C. A.), 278 ; 
and see Be Steward (1893), 3 Ch., 502. 

(e) Fausset v. Carpenter, 2 Dow. 
and CI., 232. 

(/) Ancona v. Waddell, L. R., 10 
C. D., 157. 



{g) SeeSheev. Hale, 13 Ves., 404; 
Brandon v. Aston, 2 Y. and C. C. C., 24 ; 
Churchill Y. Marks, IColl., 441 ; Martin 
V. Margham, 14 Sim., 230 ; Townsend 
V. Early, 34 Beav., 23 ; Ee Cobgrave 
(1903), 2 Ch., 705. 

(h) In re Murphy, 1 Sch. and Lef., 
44 ; In re Meaghan, ib , 179 ; Higin- 
botham v. Holme, 19 Ves., 88 ; Mackin- 
tosh V. Pagose (1895), 1 Ch., 503; 
Ee Brower's SetOement (1896), 2 
Ch., 503. See Ee Johnson (1904), 
K. B., 134. As to settlements on 
marriage, see Lewin, 12th edn., 
115. 

(i) See Indian Contract Act (IX of 
1872), s. 23, illus. {k) ; and Indian 
Trusts Act, s. 4 ; Thornton v. Howe, 31 
Beav., 14. See as to dancing-girls, 
Chinna Ummayi v. Tegarai Chetti, 
1 Mad., 168 ; Mathura Naikin v. Esv. 
Naikin, 4 Bom., 545. 



Lee. L] CESTUI QUE TEUST. 45 

will not restore the property to the author of the trust, because a 
man cannot be allowed as plaintiff to plead his own wrong. A right 
of action cannot arise out of fraud. In such a case, therefore, if 
the property has got into the hands of the trustee, the author of 
the trust is without remedy, for where there is an equal wrong, 
the title of the holder shall prevail, (a) But though the author of 
an unlawful or fraudulent trust cannot recover the property from 
the trustees, persons claiming through him may sue for the purpose. 
" There is a great difference," said Lord Eldon, " between the 
case of an heir coming to be relieved against the act of his ancestor 
in fraud of the law, and of a man coming upon his own act under 
such circumstances. "(6) A defendant cannot set up the fraud 
of his ancestor, (c) 

There is an exception to the general rule that where a trust 
has been created for an unlawful or fraudulent purpose, 
the Court will not interfere ; for it will do so where the Illegal 
illegal purpose fails to take effect, and nothing is done P".JP°se 
under it. The mere intention to effect an illegal object 
will not deprive the author of the trust of his right to recover 
the property. ((?) 

If the defendant wishes to rely on the illegality of the transac- 
tion as a defence, he must plead it in distinct terms, (e) 

In order to complete a trust, there must be a cestui que trust, 
a person to be benefited by the trust, otherwise the trust 
fails, and the property appropriated for the purpose results Must be a, 
to the author of the trust or his representatives. In Bug- ^^^j"* ^"* 
land, it has been repeatedly held, that a trust, merely 
for the purpose of keeping up tombs or buildings, which are of no 
public benefit, but only an individual advantage, is not a charitable 
use, but a perpetuity, and is void.(/) 

(a) Cottington v. Fletcher, 2 Atk., (c) Doe d. Roberts v. Roberts, 2 B. 

155; Chaplin v. Chaplin. 3 P. Wms., & Aid., 367; Bessey v. Windham, 

229; MucMeston v. Brown, 6 Ves., 6 Q. B., 166; Phillpotts v. PUllpotis,. 

68 ; Ottley v. Brovrrn, 1 B. and B., 10 0. B., 85. 

360 ; Oroves v. Groves, 3 Y. and J., (d) Davies v. Otty, 35 Beav., 208 ; 

163 ; Hamilton v. Ball, 2 Ir. Eq., 191 ; Symes v. Hughes, L. R., 9 Eq., 475 ; 

Davies v. Otty, 35 Beav., 208 ; Haigh Manning v. QUI, L. R., 13 Eq., 485 ; 

V. Kaye, L. R., 7 Ch., 469 ; Re Cheat Haigh v. Kaye, L. R., 7 Ch., 469 ; 

Berlin Steamboat Company, 26 Ch. See Indian Trusts Act, s. 84; see 

D., 616 ; Father perumal v. Muniandy, Munasami v. Subbarayar, 31 Mad., 97. 

35 Cal., 551 P. 0. ; Jadu Nath v. Rup See Chap. Ill for a fuller discussion of 

Lai, 33 Cal., 967. the authorities. 

(6) Mttchleston v. Brown, 6 Ves., (e) Haigh v. Kaye, L. R., 7 Ch., 

68 ; Joy v. Campbell, 1 Soh. and Lef., 469. 

328; Matthew v. Hanbury, 2 Vem., if) Lloydv. Lloyd,2Sim.,'iS.S., 255; 

187 ; Brachenbury v. Brackenbury, Thomson v. Shakespeare, Johns, 612 ; 

2 Jao. and W., 391 ; Oroves v. Groves, 1 De G. F. and J., 399 ; Fowler v. 

3 Y. and J., 163 ; Miles v. Durnford, Fowler, 33 Beav., 616 ; Fisk v. The 

2 D. M. G., 641 ; Childers v. Childers, Attorney-General, L. R., 4 Eq., 621 ; 

3 K. and J., 310. Hunt^ v. Bullock, L. R., 14 Eq., 45 j 



46 TRUSTS PARTLY LAWFUL. [LeC. I. 

The object of a trust must, as we have seen, be lawful. Where 
T art *^® object is clearly unlawful, no difficulty arises, for the 

ly JaTBrfuf' " Court will not enforce an illegal trust. But the object may 
and partly be in part lawful and in part unlawful, and the question 
unlawful. tiien arises as to whether the whole trust fails, or whether 

the lawful part remains good. If property be given to trustees, to 
apply part thereof for an unlawful purpose, and to hold or apply 
the residue for a lawful purpose, then, unless the amount intended 
to be applied for the unlawful purpose can be ascertained, the 
whole gift will fail(a); but the fact that the amount to be applied 
for the unlawful purpose has not been expressly stated in the gift, 
will not make the whole gift void ; and the Court will, if it be 
practicable, ascertain the amount which would have satisfied the 
unlawful purpose, and hold the gift good as to the residue. (6) 
The Indian Contract Act(c) provides, that where persons reciprocally 
promise, firstly, to do certain things which are legal, and secondly, 
under certain specified circumstances, to do certain other things 
which are illegal, the first set of promises is a contract, but the 
second is a void agreement ; and that, in the case of an alternative 
promise, one branch of which is legal, and the other illegal, the 
legal branch alone can be enforced. It has sometimes been held 
that when the lawful purpose is charitable, the unlawful part 
lapses into the lawful and the whole is available for the lawful 
purpose, (ci) 

If a trust is created of immoveable property in a foreign 

_ . J country, the trust must conform to the laws of the land 

immoveable where the property is. In Nelson v. Bridport(e), an estate 

property in in Sicily had been granted to Lord Nelson with power to 

foreign appoint a successor, and it was held that the incidents to 

real estate, the right of alienating it, and the course of 

succession to it, depend entirely upon the law of the country where 

the estate is situated. 

Dawson v. Small, L. R.,- 18 Eq., 114 ; (b) Mitford v. Reynolds, 1 Ph. 185 ; 

6ott V. Nairne, L. E., 3 C. D., 278 ; Be Voughan 33 Ch. D., 187 ; Dawson 

Re Williams, L. R., 5 C. D., 735 ; Re v. Small, L. R., 18 Eq., 114; Re Allen 

Voughan, 33 Ch. D., 187 ; Re Tyler (1905), 2 Ch., 400. 

(1891), 3 Ch., 252 ; Re Rogerson (1901) (c) IX of 1872, ss. 57, 58. 

1 Ch., 715 ; Colgan v. Administrator- (d) Fislc v. Attorney-General, L. R., 

General of Madras, 15 Mad., 424. See 4 Eq., 521 ; Re Voughan, 33 Ch. D. 

for further authorities Chapter XII. 187 ; Re Rogerson (1900), 1 Ch., 

(a) Chapman v. Brown, 6 Ves., 404 ; 715. 

Re Birhett, 9 Ch. D., 576 ; Fowler v. (e) 8 Beav., 547 ; see also Re Piercy 
Fowler, 33 Beav., 616 ; Re Taylor, . (1895), 1 Ch., 83 ; Com. de Mocambique 

5 ) L. T. N. S., 538. See Indian Trusts v. British South Africa Co. (1893), 

Act, s. 4. A. C, 602. ' 



LECTURE II. 



DECLARATION OP TRUST. 

Declaration of trust — Indian Trusts Act, ss. 5, 6 — Intention to create trust 
must be shown — Valuable consideration — Consideration not necessary — 
Transmutation of possession — Voluntary settlements — If incomplete, 
not enforced against settlor — If nothing more to be done by settlor, 
trust Is complete — Assignment by cestui que trust — Notice — What 
amounts to a valid declaration of trust — Ineffectual assignment — 
Chose-in-action — Subsequent disclaimer by trustee — Settlor cannot 
revoke voluntarily — Setting aside voluntary settlement — Defrauding 
creditors — To what property Statute applicable — Question of fraud 
is one of fact — Assignment by way of mortgage — Valuable considera- 
tion not support when mala fides — Sale to defeat Crown — Assign- 
ment in favour of one creditor — Voluntary settlements within Statute — 
Indebtedness of settlor — Secured debts — Consideration paid to third 
person — Voluntary settlement only void as against existing creditors — 
Unless fraud — How far settlement void — Subsequent purchase must be 
for value — Indian Insolvency Acts — Conveyances with power of 
revocation — Effect of Statute — Valuable consideration — Marriage — 
Extrinsic evidence admissible to show consideration — Settlement not 
set aside as against grantors — Voluntary settlement in expectation for 
death — Rectifying settlement — Enforcement — On whom binding — 
Creditors' deeds how far revocable — Johns v. James — Execution of 
deed by creditors — Deed not communicated to creditors — Trust by 
will for payment of debts. 

I NOW propose to treat of the manner in wMch a trust 
may be declared. The Indian Trusts Act provides that 
" No trust in relation to immoveable property is valid un- of^trust*'°" 
less declared by a non-testamentary instrument in writing 
signed by the author of the trust or the trustee and registered, 
or by the will of the author of the trust or of the 
trustee and no trust in relation to moveable property x"'*^^" a ^ 
is valid unless declared as aforesaid, or unless the 35. e„ (,. ' 
ownership of the property is transferred to the 
trustee. 

" Subject to these provisions a trust is created when the author 
of the trust indicates with reasonable certainty by any words or 
acts (i) an intention on his part to create thereby a trust, (ii) the 
purpose of the trust, (iii) the beneficiary, and (iv) the trust-property, 
and (unless the trust is declared by will or the author of the trust 
is himself to be the trustee) transfers the trust-property to the 
-trustee." 



48 DECLARATION OF TRUSTS. [LeC. IL 

Trusts of moveable property may be declared by parol or by 
an instrument in writing, which may be either testamentary or 
non-testamentary. (a) The Hindu law, in no transaction, abso- 
lutely requires a writing ; nor so far as I am aware, does the 
Mahomedan law. (6) 

In the territories to which the Indian Trusts Act has been 
.applied, a trust of immoveable property cannot be created by parol. 
Outside such territories, a declaration of trust need not be in 
writing, so long as the settlor constitutes himself a trustee, (c) If 
however the declaration is embodied in an instrument it requires 
registration(d) and if a stranger is constituted a trustee, there must 
be a transfer and the conveyance must conform to the law relating 
to transfer of property for the time being in force, (e) In Richards 
V. Dellridge{f ), Sir G. Jessel stated the law thus : " A man may 
transfer his property without a valuable consideration in one of 
two ways : he may either do such acts as amount in law to a con- 
veyance or assignment of the property and thus completely divest 
himself of the legal ownership, in which case the person who by 
those acts acquires the property takes it beneficially or on trust 
as the case may \)e{g) ; or the legal owner of the property may, 
by one or other of the modes recognised as amounting to a valid 
declaration of trust, constitute himself a trustee, and, without an 
actual transfer of the legal title, may so deal with the property as 
to deprive himself of its beneficial ownership and declare that he 
will hold it from that time forward on trust for the other person. "(A) 



(a) Fordyce v. Willis, 3 Bro. C. C, in a record-of-rights is insufficient to 
587 ; M'Faddenv. Jenkyns, 1 Hare, 461; create a. trust ; Dlian Singh v. Ear 
PecTcham v. Taylor, 31 Beav., 250 ; Narain, 85 P. R., 1909 : 3 I. C.,599. 
Svddasook v. Ram ChuTider, 17 Cal., (e) Transfer of Property Act (IV of 
620 ; Ram Singh v. Santohh, 14 P. 1882), a. 123. A settlement by way of 
R., 1896 ; Sabjan v. Abdul Azeez, 42 trust is a ' gift ' ; see Gordhandaa v. 
I. C. 684. Ramcoover, 26 Bom., 449 (472) ; Ranga- 

(b) Grinivaiammal v. Vijiammal 2 natha v. Bhagirathi, 29 Mad,., 412. 

M. H. C. R., 37 ; Krishna v. Rayappa, ( /) L. R., 18 Eq., 11 (14). There 

4 M. H. C. R., 98 ; M. S. Roolcho v. need not be physical delivery in addi- 

Madho Dass, 1 N. W. P., H. C. R., 63 ; tion to a registered instrument, 

Jivandas Keshavji v. Framji Nanabhai, Mahaminad v. Sadi'g, 14 0. C, 356 : 

7 B. H. C, 0. J., 51 ; Hurpurshad v. 13 I. C, 882. Registration of the 

8heo Dyal, 3 I. A., 259. See however instrument is sufficient and delivery 

Sirdar Sainey v. Piran Singh, 3 AIL, of the trust-deed is not necessary ; 

466. Puttayya v. Vedachella, 10 M. L. T., 

(c) See Louis Kunha v. Coelho, 18 44: (1911), 2M. W. N., 376. A deed 
M. L. J., 158 (171) ; Bai Mahahore v. of trust for the benefit of creditors 
Bai Mangla, 35 Bom., 403 ; Madonji v. may be a ' composition deed,' then 
Tribhowan, 36 Bom., 396. Endowment it requires no registration ; Chandra 
may be constituted without writing ; Sanlcar v. Bai Magan, 38 Bom., 576. 
Manohar Oanesh v. Lakhmiram 12 (g) See Madanji v. Tribhowan, 36 
Bom. , 247 ; Pullayya v. Ramavadha- Bom. , 396. 

nulu, 13 M. L. J., 314. {h) See also Re Capplen's Estaie, 45 

(d) Indian Registration Act (XVI of L.J. N. S. Ch., 280; Re Griffin 
1908), s. 17(b). Kamuruddeen v. Noor (1899), 1 Ch., 408 ; Bai Mahakore v. 
Mahomed, 28 M. L. J., 251. An entry. Bai Mangla, 35 Bom., 403. 



Lee. II.] VALUABLE CONSIDEEATION. 4& 

These principles have been cited with approval by Indian Courts, (a) 
The constitution of trusts by means of wills is governed by the 
laws relating to testamentary disposition. (6) The Indian Trusts 
Act expressly repeals the provisions of the Statute of Frauds in 
the territories to which it extends, but it is doubtful whether in 
the Presidency-town of Calcutta the Statute has ceased to be in 
force, (c) But these rules regarding the valid constitution of 
trusts do not operate so as to effectuate a fraud and in this respect 
the law in England has been followed in India. (<?) The Statute 
does not prevent the proof of a fraud. " Consequently notwith- 
standing the Statute, it is competent for a person claiming land 
conveyed to another, to prove by parol evidence that it was so 
conveyed upon trust for the claimant and that the grantee, knowing 
the facts, is denying the trust and relying upon the form of the 
conveyance and the Statute, in order to keep the land himself, and 
the principle applies, not only where the trustee, whose conscience 
is affected, is the defendant, but also as against volunteers or 
creditors claiming under him. "(e) , 

It is only necessary that the person creating the trust shall 
clearly show his intention to create the trust(/ ), and shall intention 
point out the subject-matter of the trust and the persons to create 
who are to benefit by it. (gr) Technical words are not neces- trust must 
sary, but if they are used, their technical meaning must ^^ shown, 
be given to them. (A) Where there is valuable consideration, and 
a trust is intended to be created, formaUties are of minor 
importance, since, if the transaction cannot take effect by Valuable 
way of trust executed, it may be enforced by a Court of ^°^^^ ^^^' 
Equity as a contract, (i) Where immoveable property 
was given into the possession of the defendant under an order 
of a revenue officer, which directed the defendant to sell the 
crops, and after payment of the Government dues, to account for 

(a) See Hirbai v. Jan Mahomed, 7 has to be manifested and proved by- 
Bom., 229 (250) ; Ashabhai v. Haji writing ; see Foster v. Hale, 3 
Tyeb, 9 Bom., 115 (122) ; Bhashar v. Yea., 707. This was thought to be 
Saraswatibai, 17 Bom., 486 (500); a rule of procedure in the Bombay 
Oordhandas v. Eamcoover, 26 Bom., case aforesaid. See page 13, note (I) 
449 (471) ; Manchershaw v. Ardeshir, supra. 
10 Bom. L. R., 1209 (1228). (d) Louis Kunha v. Coelho, 18 M. L. 

(6) See the Indian Succession Act J., 158 (170). 
(X of 1865), and the ffiudu Wills Act (e) Uncoln v. Wright, 4 DeG. & J.,. 
(XXI of 1870). The will of a Hindu 22; Bouchefoucauld v. Boustead (1897)^ 
outside the Hindu Wilis Act may be 1 Ch. (C. A.), 206. Indian Trusts- 
oral ; Beer Pertrab v. Maharaja Bajan- Act, s. 5. 
dar, 12 M. I. A., 1; likewise among (/) Lewin, 12th Ed., 88. 
Mahomedans ; Tumeez Begum y. (g) See Ladhabai v. Navivahu, IT 
JFurihut Hussan, 2 N. W. P., 155. Bom. L. R., 783 ; Mohammad Hashim 

(c) For a negative opinion, see Sir v. SadiqHusain, 14 0. C, 356 : 13 I. C.,. 

Dinshaw Manechji Petit v. Sir Jam^eiji 882. 

Jijibai, 33 Bom., 509. Even under (h) Lewin, 12th'Ed., 125. 

the Statute of Erauds, the declara- (i) Ibid. 71. 
tion need not be in writing, but 

A, LT 4 



50 VOLUNTARY SETTLEMENT. [LCC. II. 

the profits to the plaintifi on his claiming it, it was held that the 
defendant was not a depositary but a trustee, (a) 

It is not necessary there should be any consideration to support 
_ . . a trust. (6) If a trust has been perfectly created, it is not 

tion not necessary that there should have been a transmutation of 

necessary. possession, and it cannot afterwards be defeated by any 
Transmu- ^'Ct of the settlor, (c) As a general rule, it may be laid 
tationof down that, in order to make a voluntary declaration of 

possession. trust binding upon the author of the trust, he must have 
completely parted with all his interest in the property to the 
trustee, or have declared himself to be a trustee of the property 
for the benefit of the cestuis que trusfent.(d) It is not necessary, 
in order that the trust may be binding, that it should be com- 
municated to, or accepted by, the volunteer, (e) 

The leading case with reference to settlements and trusts in 

favour of a volunteer, — that is to say, a person who has not 

^tttm^nts given any consideration, is Ellison v. Ellison.(f) " I take 

the distinction to be," said Lord Eldon, " that, if you 

want the assistance of the Court to constitute you cestui que trust, 

and the instrument is voluntary, you shall not have that assistance 

for the purpose of constituting you cestui que trust; as upon a 

covenant to transfer stock, &c., if it rests in covenant and is purely 

voluntary, this Court will not execute that voluntary covenant. 

But if the party has completely transferred stock, &c., though it 

is voluntary, yet the legal conveyance being effectually made, 

the equitable interest will be enforced by this Court. ... If 

the actual transfer is made, that constitutes the relation between 

trustee and cestui que trust, though voluntary, and without good 

or meritorious consideration." 

If incom- But although a voluntary settlement or grant may 

plete, not be valid as against creditors and purchasers, it may be 

against incomplete ; and then will not be enforced against the 

settlor. settlor."(g') A volunteer has no equity to enforce a mere 

(o) Vital Vishva Nath Prabhu v. Hingston, 3 Sm. & G., 337j Wheaiky 
Bam Chandra Sadashiv Kirkire, 7 B. v. Purr, 1 Keen., 551 ; 



H. C. R., 149. Stapleton, 14 Sim., 186; Moore v. 

(6) Lewin, 12th Ed., 71 ; see also Barton, 4 DeG. & Sm., 517 ; Gee v. 

Suttaprosunno Ohosal v. BaWialmoney Liddell, 35 Beav., 621. 

£lo««ee, Boul., 706. (e) Ee Way, 2 D. J. & S., 365; 

(c) jamsetji Jijibhai v. Sana Bhai, Lambe v. Orton, 1 Dr. Sm., 125 ; Tate 
2 B. H. 0. R., 143 ; Mahadeva v. v. Leithead, Kay, 658 ; see Pullayya v. 
Sarikarasubramanya, 18 M. L. J., 450, Vedadiela, 10 M. L. T., 44. 

and see Lewin, 12th Ed., 71. (/) 6 Ves., 656 ; 1 W. & T. L. C, 

(d) Milroy v. Lord, 4 D. F. & J., 245, 4th Ed. See also Bi Bichards, 
274 ; Warriner v. Sogers, L. R., 16 Eq., 36 Ch. D., 541 ; Carter v. Carter (1896), 
340 ; Bichards v. Delhridge, L. R., 18 1 Ch., 62 ; MaUot v. WiUon (1903), 2 
Eq., 11 ; HeaHley v. Nicholson, L. R., Ch., 494. 

19 Eq., 233 ; Ebrahimbai v. Fulbai, 26 {g) Antrobus v. Smith, 12 Ves., 46 ; 

Bom., 577. As to what amounts to a Ellison v. Ellison, 6 Ves., 662 ; Jeffreys 

complete transfer, s»e Parndl v. v. Jeffreys, Cr. & Ph., 138 ; Ex parte 



Lee. II.] VOLXINTARY SETTLEMENT. 51 

Toluntary promise to assign against the assets of the person who 
made the promise, (a) A voluntary covenant to transfer stock is a 
mere imperfect gift which equity will not assist, (b) So is a voluntary 
covenant to transfer shares, (c) A voluntary settlement is incom- 
plete unless the interest of the donor has been completely parted 
with, and therefore a voluntary agreement to declare a trust will 
not be enforced. ((?) Even if the settlor has executed a deed pur- 
porting to pass his interest, and he intends to carry out the transac- 
tion, yet if, for any reason, he has not in fact parted with his interest, 
the trust cannot be executed, (e) But when a covenant or other 
instrument creates such a complete obligation on the part of the 
covenantor, that damages would be recoverable in case of breach, 
effect will be given to it, as when a person covenants to pay a sum 
of money or an annuity. (/) So a settlement or gift by the bond 
of the settlor may be enforced against the obligor's estate(5r) ; and 
a person claiming under such a bond is within the Statute, 13 Eliz., 
c. 5, and is entitled to the protection of the Statute like any other 
creditor. 

In Hervey v. AudlandQi), it was held that a covenantee under 
a voluntary covenant for further assurance could not prove under 
an administration-suit against the covenantor's estate. But, in 
Cox V. Barna/rd{i), this was allowed, upon the ground that though 
the Court might not specifically execute the covenant as damages 
were wanted, it could give damages.(y ) The delivery of property 
or securities passing by delivery is valid. (A) 

If, however, the grantor adopts some other mode of transfer 
than that which is necessary to effect a complete assignment of the 
property, the transferee will not be entitled unless the instrument 
can be construed as a declaration of trust. For instance, an 

Pye, 18 Ves., 149. See also Green v. SetOement, 37 Ch. D., ' 18 ; Priestly v. 

Paterson, 32 Gh. B., 57; Be Innes £!Zj« (1897), 1 Ch., 489. 

(1910), 1 Ch., 188. ( / ) Fletcher v. Fletcher, i Hare, 07 ; 

(o) Jfarier V. Tomj)ia«, L. R., 17 Eq., Watson v. Parker, 6 Beav., 283; 

8,13. See also Re Smith, GiL.T., IS; CUmgh v. Lambert, 10 Sim., 174; 

Vincent v. Vincent, 35 W. R., 7. Hales v Cox, 32 Beav., 118 ; Bonfieldv. 

(b) Ellison v. Ellison, 6 Ves., 656 ; Hassell, ib., 217. 

Ward V. Audland, 8 Sim., 571. (g) Dening v. Ware, 22 Beav., 184 ; 

(c) Dillon V. Coppin, 4 M. and C, Hall v. Palmer, 3 Hare, 532 ; Hales v. 
"647 ; Dillwyn v. Llewelyn, 4 D. F. J., Cox, 32 Beav., 118 ; Mallot v. Wilson 
517. (1903), 2 Ch., 494. A bond, voluntary 

(d) Evelyn v. Templar, 2 Bro. C. C, at first, may acquire valuable cousider- 
148 ; Coleman v. Barrel, 1 Ves., J., 50 ; ation later ; Payne v. Mortimer, 4 De- 
Jeffreys v. Jeffreys, Cr. and Ph., 138. G. & J., 447 ; Halifax Joint Stock 

(e) Garrard v. Lord Lauderdale, 2 Banking Co. v. Gledhill (1891), 1 Ch., 
R. & M., 452 ; Meek v. KeUleweU, 31. 

1 Hare., 469 ; Richards v. Delbridge, (h) 14 Sim., 531. 

L. R., 18 Eq., 11 ; Heartley v. Nichol- (i) 8 Hare, 310. 

son, L. R., 19 Eq., 233 ; Batstone v. {j) See Patch v. Shore, 2 Dr. & Sm., 

Salter, L. R., 10 Ch., 431 ; Bulbeck v. 589. 

Silvester, 45 L. J., Ch., 280 ; Re Shield, (k) Irons v. Smallpiece, 2 B. & Al., 

53 L. T., 5. See also Re Fitzgerald's 551 ; MCulloch v. Bland, 2 Giff., 428. 



52 



VOLtJNTARY SETTLEMENT. 



[Lec. IL 



If nothing 
more to be 
done by 
settlor, 
trust is 
complete. 



attempt to transfer shares or property of that description by some 
other mode than that which is effectual by the rules of the company 
or society in which the shares are held is not an effectual transfer : 
as, for instance, where the owner of shares endorsed on the certi- 
ficates the words, " I hereby assign, &c.," to others, but no transfer 
was executed, he was held to have a locus pcenitentiw so long as the 
gift was incomplete. So a power-of-attorney given to the trustee 
to transfer will not be sufficient unless he acts upon it. (a) Again, 
where the transfer is in other respects imperfect and does not operate 
on the whole property(6), and if the assignment or other mode of 
gift or settlement is incomplete and the gift is intended to take 
effect by it, the Court will not construe it as a declaration of trust, 
and upon this ground give effect to it, for then every imperfect 
instrument would be made effectual by being converted into a 
perfect trust, (c) Where a cheque was given to one in trust for 
another, with a verbal direction that the amount was to be in 
trust instead of a legacy given by will to the proposed cestui 
que trust, the declaration was held to be inoperative(d) ; and where 
a cheque was given by the owner to his young child with a declara- 
tion before witnesses, but was afterwards retained by the owner 
till his death(e), no trust was created. But an instrument executed 
as a present and complete assignment (not being a mere covenant 
to assign at a future time) is equivalent to a declaration of trust ; 
therefore, such an instrument will pass promissory notes of the 
grantor, though neither specifically mentioned in the deed, nor 
indorsed by him.(/) This case, and the observations in Grant v. 
Grant(g), would seem, to a certain extent, to modify the doctrine 
in Mihroy v. LordQi), which, however, was a decision of the Lords- 
Justices. And if nothing more remains to be done or can 
be done by the grantor or donor, — ^if as far as he is con- 
cerned, the conveyance or assignment is complete, and 
he has done all that is necessary to be done, having regard 
to the nature of the property, — the assignment or other 
assurance will be valid in equity, (i) Thus, an assignment 



(a) Milroy y. Lord, i D. F. J., 264 ; 
Antrobus v. Smith, 12 Ves., 39 ; Dillon 
V. Coppin, 4 M. and Or., 647 ; Searle v. 
Law, 15 Sim., 95 ; OunningJiam v. 
Plunket, 2 Y. and C. C. C, 245 ; Weak 
V. Ollive, 17 Beav., 252 ; Moore v. 
Moore, L. R., 18 Eq., 474 ; Be Capplin's 
Estate, 45 L. T. N. S. Ch., 280. 

(6) Woodford v. Gharnley, 28 Beav., 
96. 

(c) Milroy v. Lord, 8 Jur. N. S., 
806 ; Richards v. Delbridge, L. R., 18 
Eq., 11 ; Heartley v. Nicholson, L. R., 
19 Eq., 233 ; BottU v. Knocker, 46 L. J., 
Ch., 159; Baddley v. Baddley, L. R., 
9 Ch. Div., 113 ; Fox v. Hawlces, L. R., 



13 Ch. Div., 822 ; Bottle v. Knocker, 46 
L. J. N. S. Ch., 159 ,- Re Shield, 53 L. T. 
N. S., 5 ; Re Hancock, 57 L. J. Ch., 793 ; 
New & Co?s trustee v. Hunting (1897), 

2 Q. B. (C. A.), 19 ; sub nom. Sharp v. 
Jackson (1890), A. C. (H. L.), 419; 
Narasimha v. Venkayamma, 5 M. L. T., 
108: 19 M. L. J., 106. 

(d) Hughes v. Stubbs, 1 Hare, 476. 

(e) Jones v. Lock, L. R., 1 Ch., 25. 

( / ) Richardson v. Richardson, L. R., 

3 Eq., 686. 

{g) 34 Beav., 623. 
(h) 8 Jur., N. S., 806. 
(i) Shane v. Cadogan, Sugd. V. & 
P., nth Ed., App.; Edwards v. Jones,. 



Lee. IL] VOLUNTARY SETTLEMENT. 53 

-of a policy of assurance by deed is valid, although the grantor may 
retain the deed and give no notice of the assignment to the office, (a) 
And where there was a voluntary assignment of a chose-in-action 
followed by a power-of-attorney to receive it, this would seem to 
be sufficient to give a right in equity to have the deed enforced 
«ven after the death of the assignor. (&) 

After a valid declaration of trust, the fact that the trust-fund 
is found at the settlor's death mixed up with his own moneys, does 
not afiect the validity of the trust, (c) 

When property is vested in a trustee, the cestui que trust may 
make a valid assignment of his beneficial interest, and 
the assignee will have the right to enforce it by proceeding Assignment 
against the trustee.(eZ) Notice to the trustee is not neces- f^J^f "* ^"* 
sary to perfect the trust, even as against a subsequent ' 

volunteer who does give notice. As against the settlor an ° "^^* 
equitable interest is perfectly transferred without notice, (e) But 
St, voluntary assignment of a mere expectancy in an equitable 
interest, not communicated to the trustees, does not amount to 
the creation of a trust. (/) If notice is not given, the trustee 
will be justified in paying over the fund to the grantor. (gr) And 
if the settlor conveys his equitable interest to trustees, and 
directs them to hold it upon trust for another, that will be as 
effectual as if he had declared himself a trustee. (A) So it will 
be sufficient if he directs his trustees to stand possessed of the 
property upon the new trust(*), or even if he assigns it to the 
new cestui que trust without the intervention of a trustee.(y ) 



1 M. & C, 238 ; Milroy v. Lord, 8 Jur., 711 ; Sloiper v. Gottrell, 6 E. & B., 504 ; 

N. S., 806. Kekewich v. Manning, Gilbert v. Overton, 2 H. & M., 110; 

1 D. M. 6., 187 ; Re Griffin (1899), 1 Gorringe v. Irwell India Rubber Co., 
Oh., 408 ; In re Patrick, (1891), 1 Ch., 34 Oh. D., 128 ; Re Patrick (1891), 1 
<0. A.), 82 ; Ebrahimbai v. Foulbai, Ch. (C. A.), 82. 

26 Bom., 577. ( / ) Meek v. Kettlewell, 1 Hare, 464 ; 

(a) Fortescue v. Barnett, 3 M. & K., affd. 1 Phillips, 342 ; Penfold v. Mould, 

36 ; Pearson v. Amicable Assurance Co., L. R., 4 Eq., 564 ; Be Parsons, 45 Ch. 

-21 Beav., 229 ; Pedder v. Mosely, 31 D., 51 ; Be Ellenborough (1903), 1 Ch.. 

Bsav., 159. 697. Sse Transfer of Property Act 

(6) Kiddill v. Farnell, 3 Sm. & G., (IV of 1882), s. 6(a). 

428 ; Weale v. Ollive, 17 Beav., 252 ; (g) Donaldson v. Donaldson, Kay, 

Woodford v. Charnley, 28 Beav., 96. 711. 

(c) Thorpe v. Oiuen, 5 Beav., 224. (h) Gilbert v. Overton, 2 H. & M., 

(d) Sloane v. Cadogan, Sugd. V. & 110. 

P., 11th Ed., App.; Kekewich y. Man- (i) Rycroft v. Christy, 3 Beav., 238 ; 

ning, 1 D. M. G., 176; Donaldson v. M'Fadden v. Jenkins, 1 Hare, 458; 

Donaldson, 'K^i.y, 111 ; Voyle v. Hughes, Lambe v. Orton, 1 Dr. & S., 125; Be 

2 S. & G., 18 ; Pearson v. Amicable Hancock, 57 L. J. Ch., 793 ; Harding 
Assurance Co., 27 Beav., 229 ; Re Way, v. Harding, 17 Q. B. D. (0. A.), 
2 D. J. & S., 365 ; In re King, L. R., 442. 

14 C. D., 179. ( j ) Cotteen v. Missing, 1 Mad., 176 ; 

(e) Burn v. Oarvalho, 4 M. & Cr., ColUnson v. Pattrick, 2 Keen, 123 ; 
690 ; Donaldson v. Donaldson, Kay, Godsal v. Webb, ib., 99. 



54 



VOLUNTARY SETTLEMENT. 



[Lec. IK 



What 
amounts to 
a valid 
declaration 
of trust. 



A voluntary settlement may be effected by a declaration of 
trust, by whicli the owner of property declared either him- 
self, or another person in whom the property is vested, a 
trustee for the voluntary grantee, (a) A declaration of 
trust is not confined to any express form of words, but 
may be indicated by the character of the instrument. (6) 
If the settlor shows no intention of keeping a control over the 
settled property otherwise than as a trustee for the objects of his 
bounty, the trust will be effectual.(c) The tendency of modern 
decisions is to construe a voluntary settlement or gift inopera- 
tive, as a complete transfer of the property as a declaration 
of trust, if this can be done consistently with the previous 
authorities, (c?) 

A receipt in the form " received of A, for the use of B, £100 
to be paid to B at A's death " is a sufficient declaration of trust.(e) 
In Grant v. Grant(f ), Lord Romilly said, that if A, having a sum of 
consols, were to say to B, " I give you that sum," or to C " I have 
given that sum to B," that would be sufficient to make A trustee 
for B. See also Milroy v. Lord{g). In Morgan v. MallesonQi) ,. 
the donor made and signed a memorandum, " I hereby give and 
make over to A & bond," specifying it, but retaining it in his own 
possession ; and it was held, that there had been a sufficient 
declaration of trust in favour of A.{i) 

A banker, who debits himself in his books with money in 
favour of another, thereby declares himself a trustee of it.{j ) So, 
where a person deposits securities for money in the hands of a 
trustee, stating that he intends them as a provision for the volun- 
tary grantee, (fc) 

An assignment, or attempted assignment, by the grantor, 
of property, in a way which is ineffectual to pass the 
interest, will be good if the assignment is upon trust for the; 
grantee in such terms that the Court can construe it as a 
declaration of trust by the grantor. (?) 



Ineffectual 
assignment 



(a) Oollinson v. Pattrick, 2 Keen, 
123. 

(6) Kehewich v. Manning, 1 D. M. 
G., 176. 

(c) Wheatley v. Purr, 1 Keen, 551 ; 
Vandenberg v. Palmer, 4 K. & J., 204. 

(d) See Kekewich v. Manning, 1 D. 
M. G., 176 ; Richardson v. Richardson, 
L. R., 3 Eq., 686. See Re Ellen- 
borough (1903), 1 Ch., 197. 

(e) Moore v. Darton, 4 DeG. & Sm., 
517 ; see also Paterson v. Murphy, 11 
Hare, 88. 

(/) 34Beav., 623. 



(g) 8 Jur., N. S., 809. 

(h) L. R., 10 Eq., 475. 

(!) In re Bellasis' Trusts, L. R., 12 
Eq., 218 ; Warriner v. Rogers, L. R., 
16 Eq., 349. 

(j) Stapleton v. Stapleton, 14 Sim., 
186 ; Sabjan v. Abdul Azeez, 42 I. C., 
681. For the presumption of advance- 
ment in India in such cases, see Ashabai 
V. Hajee Tyeb, 9 Botn., 115. 

(h) Watson, 284, citing Arthur v. 
Clarhson, 14 W. R. (Eng.), 754. 

(I) Airey v. Hall, 3 Sm. & G., 315 j 
Parnell v. Hingston, ib., 337. 



Lee. II.] VOLUNTARY SETTLEMENT. 55 

An assignment of a chose-in-action{a), coupled with a declara- 
tion that the fund shall be held upon certain trusts for the . 
benefit of the assignor, and ultimately of the assignee, is ^aZV' 
valid. (6) And a declaration of trust will be valid though 
the settlor may retain control over the fund(c) or keep the instru- 
ment declaring the trust in his possession. (<Z) A mere expression 
of intention to be carried into efEect by some future act does not 
amount to a declaration of trust, (e) 

If a settlor conveys his property to a trustee in such a manner 
as to completely divest himself of it, and the trustee sub- 
sequently disclaims, the accident of the disclaimer has Subsequent 
been held not to vitiate the deed, but the Court will by trusted, 
appoint a new trustee. (/) 

If the person in whose favour a voluntary gift is made 
incurs expense in respect of the property, the subject of the 
gift, with the sanction of the donor, he may call for a con- 
veyance of it.{g) 

A complete voluntary settlement cannot be revoked by settlor 

a subsequent voluntary settlement, even if the property cannot 

becomes re-vested in the settlor, for he will then take it not revoke 

absolutely, but as a trustee. (A) voluntarily. 

According to Shiah law, a man who devotes property to 
charitable or other uses, and transfers the proprietary right therein 
to a trustee, cannot, at his pleasure, take it back from the trustee, 
whom he has constituted the owner, and give it to another person, 
unless, on the creation of the trust, he has reserved to himself the 
right to do so in express terms, (i) 

But if a person, without the privity of any one, and without 
receiving consideration, makes a disposition as between himself 
-and trustees for purposes connected with himself, he is merely 
directing the mode in which his own property shall be applied for 
Ms own benefit, and the deed will operate merely as a power to the 
trustees and will be revocable by the party making it, for the 



(a) See Transfer of Property Act (IV (/) Jones v. Jones, 1874, W. N., 

of 1882), s. 138. 190 ; Mallot v. Wilson (1903), 2 

(6) Parnell v. Hingston, 3 Sm. & G., Ch., 494. 

337; see also /k re King, L. R., 14 {g) Dillwyn v. Llewelyn, 4 DeG. F. 

C. D., 179. & J., 517. 

(c) Wheatley v. Purr, 1 Keen, 551 ; (ft) Newton v. Askew, 11 Beav., 



' V. Palmer, 4 K. & J., 204. 145 ; Ellison v. Ellison, 6 Ves., 656 ; 

(d) Be Way's Trust, 2 DeG. J. S., Smith v. Lyne, 2 Y. & C. C. C, 345 ; 
365 ; Fletcher v. Fletcher, 4 Hare, 67 ; Paterson v. Murphy, 11 Hare, 88. See 
Hope V. Harman, 11 Jur., 1097. Mahadeva v. Sankarasubramanya, 18 

(e) Bayley v. BouUott, 4 Buss., M. L. J., 450. 

345 ; Narasimha v. Venkayamma, 5 M. (i) Hidait-oon-nissa v. Syud Afzul 

L. T., 108 : 19 M. L. J., 106. Hossein, 2 N. W. P., 420. 



56 



DEFBAUDING CEEDITOES. [LeC. II. 



settlor being the only cestui que trust, may direct the disposition 
of his own trust-fund, (a) 

Setting If a voluntary settlement has been obtained by fraud 

voluntary °^ undue influence, or has been executed under a mistake, 
settlement. it may be set aside. (6) 

A voluntary settlement made with the intention of defrauding 
creditors or subsequent purchasers will be void as against 
wedhofs"^ them under the Statutes 13 BUz., cap. 5 and 27 Eliz., 
cap. 4.(c) These Statutes were in force in the Presidency- 
towns until June 1882.(<i) In Sham Kissore Shaw v. Cowie{e) they 
were held to be applicable to persons other than European British 
subjects ; and in Gnanabhai v. Srinivasa Pillai{f ), the Court said 
that the principles applied in the English cases may fully be made 
applicable to voluntary transactions between natives, (gr) In 
Azimunnissa Begum v. Dale(h), Bittleston, J., seemed to think 
that the Statutes did not apply. But in Abdul Hye v. Mir Mohamed 
Mozaffar, the Privy Council felt no doubt that the principles of the 
Statutes and of the common law for avoiding fraudulent convey- 
ances were proper guides in administering law in India according 
to equity and good conscience. (*) 

' i The absence of consideration was taken to be comprised in 
the term ' fraudulent,' though the Act did not specially refer to 
voluntary conveyances in so many words. (_;) But the extent of 
the value given was not taken into consideration ; the question 
was, whether the transaction was one of bargain or of gift merely, 
and the fact that some value, e.g., a covenant to indemnify against 
expenses, was given, might be proved aliunde.(k) The operation 
of these Statutes was thus to destroy all estates created by volim- 
tary conveyances, at the suit of creditors and purchasers. (?) 



(a) Kanye Dass Byragee v. Ram- of /»d«a, 22 Cal., 185. 

gopal Ohose, 16 S. D. A., 23 ; Oolam v. (e) 2 Ind. Jur., 7. 

The Official Trustee of Bengal, 8 Cal., (/) 4 M. H. C. R., 84 ; Rangilbai v. 

887. Vinayah, 11 Bom., 666; Harmitsji v. 

(6) Huguenin v. Basley, 14 Vea., Gowasji, 13 Bom., 297. 

273 ; Allcard v. Skinner, 33 Ch. D. (g) And see Soodheekeena Chowdrain 

<C. A.), 145; Men-ley v. Loughnan v. Qopee Mohun Sein, 1 W. R., 41; 

(1893), 1 Ch., 736 ; Forshaw v. Welsby, Judah v. Mirza Abdool Kurreem, 22 

30 Beav., 243 ; Nanney v. Williams, W. R., 60. 

22 Beav., 452 ; Davies v. Otty, 35 (A) 6 M. H. C. R., 474. 

Beav., 208 ; Bindly v. MuUoney, L. (i) 10 Cal., 616, P. C; Bhagwant v. 

R., 7 Eq., 343 ; Manning v. Gill, Kedari, 25 Bom., 202. 

L. R., 13 Eq., 485; Rujabaiv. Ismail (j) Doe v. Manning, 9 East, 59; 

Ahmed, 7 B. H. C. R., 35. Doe v. Busham, 17 Q. B., 723 ; Willats 

(c) Oooche's case, 5 Rep., 60a v. Busby, 5 Beav., 193. 

and Nunn v. WiUon, 8 T. R., 521 ; (k) Pott v. Todhunter, 2 Coll., 76 ; 

Doe V. Ball, 11 M. & W., 531. Townend v. Toker, L. R., 1 Ch., 446. 

(d) See Stokes's Older Statutes, (!) Ourrie v. Nind, 1 M. & Cr., 17. 
Introd., iv. Joshua v. Alliance Bank 



Lee. II.] DEFRAUDING CREDITOES. 57 

To remedy this wholesale condemnation of voluntary <}on- 
veyances, the Voluntary Conveyances Act was passed in 1893. 
It declares that no voluntary conveyance of any lands, tenements 
or hereditaments, whether made before or after the passing of the 
Act, if in fact made bond fide and without any fraudulent intent, 
shall be deemed fraudulent or covinous by reason of any subse- 
quent purcTiase for value or be defeated under any of the provisions 
of the said Act by a conveyance made upon any such purchase, (a) 

But by Transfer of Property Act, the Statutes of Elizabeth 
were repealed in India and by section 53 it is enacted : — 

" Every transfer of immoveable property, made with intent to defraud 
prior or subsequent transferees thereof for consideration, or co-owners or 
other persons having an interest in such property, or to defeat or delay the 
creditors of the transferor, is voidable at the option of any person so 
defrauded, defeated or delayed. 

Where the effect of any transfer of immoveable property is to defraud, 
defeat or delay any such person, and such transfer is made gratuitously or 
for a grossly inadequate consideration, the transfer may be presumed to 
have been made with such intent as aforesaid. 

Nothing contained in this section shall impair the rights of any trans- 
feree in good faith and for consideration," 

In certain respects this section does not even purport to go so 
far as the Statutes of Elizabeth. For while 13 Eliz,, cap. 5, applied 
to transfers both of realty and personalty, section 53 of the Indian 
Act applies only to immoveable property. The Statute 27 Eliz., 
cap. 4, relates to realty only and was intended for the protection 
of purchasers only, which term, though it included of course 
mortgagees, could not include a mere holder of a money-decree, 
who was not a purchaser within the meaning of the Statute.(6) 
In the absence of a specific charge under the decree, the decree- 
holder could not avail himself of 27 Eliz., cap. 4. At least as 
regards immoveable property(c), the Indian Act is in conformity 
with the principles of substantive law laid down in the English 
Statutes, (c?) 

An assignment of property which cannot be taken in execution 
is not, within the prohibition, as an assignment of property ^^ ^^^^ 
with the intent to delay creditors, inasmuch as creditors property 
could never have had execution or satisfaction out of such ^^^^.V^^, 
property, (e) An assignment of choses-in-action is not in- ^^^ "^^ ^* 

(a) 56 & 57. Vie. C. 21, s. 2. 202 (explaining Ishan Chunder v. 

(6) Beavan v. Earl of Oxford, 6 De 24 Cal., 825 ; Natha v. Dhummaji, 



G. & M., 507 ; Benham v. Keave, 31 L. 23 Bom., 1) ; Natha v. 

J. Ch., 129. 5 Bom. L. R., 170; Hakim Lai v. 

(c) These general principles were Mooshahib, 34 Cal., 999 ; but see 
-applied also in the case of moveable Ishan Chunder v. Bishen, 24 Cal., 825. 
.property; Chidambaram v. Sami, 30 (e) Sider v. Kidder, 10 Ves., 360 
Mad., 6 ; on appeal, 37 Mad., 227 P. C. Norcutt v. Dodd, Cr. & Ph., 100 

(d) Joshua V. Alliance Bunk, 22 Cal., Barrack v. McCulloch, 3 K. & J., 110 
185 ; Bhagwant v. Kedari, 25 Bom., Stokoe v. Cowan, 29 Beav., 637. 



58 



DEFRAUDING CREDITORS. 



[Lec. IK 



operative during the life-time of the assignor, except as regards- 
such as can be taken in execution, (a) 

The question as to whether the assignment was with the intent 
to hinder, delay, or defraud creditors, is one of fact. And 
oHrauTs " *^® Court or Jury must consider whether, having regard 

one of fact. *° ^1' ^^^ circumstances, the transaction was a fair 
one, and intended to pass the property for a good and 
valuable consideration. "(6) Circumstances of suspicion do not 
amount to proof of fraud(c), even when the conveyance is 
absolute and the grantor remains in possession, though this is 
generally considered to be an indication or badge of fraud, (i) 
But where the conveyance is not absolute, to take effect imme- 
diately, as in the case of mortgage, and the mortgagee is not to 
take possession until a default in the payment of the mortgage- 
money, then, as the nature of the transaction does not call for 
any transmutation of possession, the absence of such transmuta- 
tion seems to be no evidence of fraud, (e) If it be found 
as a fact that there was no fraud, the conveyance will, as a rule, 
be good under the Statute.(/) Where there is no consideration, 



(a) Norcutt v. Dodd, Or. & Ph., 
100 ; Ideal Bedding Co. v. Holland 
(1907), 2 Ch., 157. 

(6) Hall V. Saloon Omnibus Co., 
4 Drew. , 492 ; iSankarappa v. Katnayya, 

3 M. H. C. R., 238 ; Pullen v. Rama. 
Unga, 5M. H. C. R., 361 ; Mt. Jankiv. 
Thakur Prasad, 1 C. P. L. R., 63; 
Bajan v. Ardeshir, 4 Bom., 70. 

(c) Martindale v. Booth, 3 B. & 
Ad., 498 ; Hale v. Saloon Omnibus Co., 

4 Drew., 492 ; Faez Buksh v. Fakee- 
rudin, 14 M. I. A., 234 ; Wazeruddin v. 
Deoki Nandan, 6 C. L. J., 472. 

(d) Twyne's Case, 3 Rep., 80 ; Mar- 
tindale V. Booth, 3 B. & Ad., 498. 

In Twyne's Case, the badges of fraud 
were thus enumerated : — 

(») Where the transferor disposes of 
his entire estate without any exception 
including his wearing apparel, or, as it 
is said quod dolosus versatur in general- 
ibus ; 

^M) Where he remains in possession 
of the property although possession is 
professedly transferred ; 
- {Hi) Where the transfer is made in 
secret — dona dandeslina sunt semper 
suspiciosa ; 

(iv) Where the transfer is made in 
anticipation of or pending a suit ; 

(u) AVhere there is a trust between 
parties, for " fraud is always apparelled 
and clad with a trust, and trust is the 
cover of fraud " ; 

(vi) Where the deed contains a state- 



ment that the transfer is made honestly, 
truly and bon4 fide ; and to which may 
be added the other circumstances 
equally significant, viz. ; 

(vii) ThSt the deed is antedated,, 
although the instrument is in fact 
executed by the parties by whom it 
purports to have been executed ; 

(vm) That the transfer was un- 
registered, although its registration 
may not have been compulsory ; 

(ix) That the transaction was be- 
tween relations ; 

(ic) And there was no apparent neces- 
sity for entering into it, as where a 
mortgage is made by a person possessed 
of other property, to satisfy the claims 
of his creditors ; or, 

(xi) That the attesting witnesses 
were not independent witnesses. 
(These principles were followed in 
many cases in India ; Shib Narain v. 
Shankar, 5 C. W. N., 403; Motilal 
V. Utam, 13 Bom., 434 ; Gopal v. Bank 
of Madras, 16 Mad., 397 ; Chidambaram 
V. Sami. 30 Mad., 6 ; on appeal, 37 
Mad., 227 P. C.) 

(e) 1 Sm. L. C, 15 ; Edwards v. 
Harben, 2 T. R., 587. 

( / ) Martindale v. Booth, 3 B. & Ad., 
498 ; Freeman v. Pope, L. R., 5 Ch., 
538 ; Joakin v. Secretary of State for 
India, 3 All., 530. See Gopal v. Bank 
of Madras, 16 Mad., 897 (though in 
contemplation of insolvency). 



Lee. II.] DEFEAUDING CEEDITORS. 59 

the intent may be presumed, but the intent to defraud, defeat, 
delay or hinder must be the sole conceivable or dominant motive 
and that if there is consideration, this intent cannot be presumed 
but must be proved, and must be shown to have been one to which 
the purchaser for value was a party for the purpose of enabling the 
debtor to retain a benefit, and that this being proved, the fact 
that consideration has passed will not avail to save the transaction 
from any creditor impeaching it as an attempt to defraud, defeat, 
delay or hinder him. (a) 

A valuable consideration will not support a conveyance if 
there be mala fides, and an intent to delay or defraud 
creditors. Even an ante-nuptial marriage settlement may consWeration 
be set aside. Of course, those who undertake to impeach not support- 
for maid fides a deed which has been executed for valuable ed when 
consideration, have a task of great difficulty to discharge, (b) "^ '^^' 
So, if the object of the conveyance be to place the property beyond 
the reach of process, or to defraud future creditors, it will be void, 
though it may be, or may purport to be, for value, (c) An assign- 
ment by a prisoner, on the eve of trial for felony, of all his 
effects upon certain trusts, is within the Statute, and void ^^^ crowii 
as against the Crown(c?) ; but otherwise, if made bond fide 
and for value, for instance, to secure an existing debt.(e) 

To support a conveyance, good faith is needed and that at 
least on the part of the transferee. (/) The fraudulent intent of 
the transferor cannot by itself vitiate the transaction. If however 
the transferee had notice of the fraudulent purpose and was privy 
to the furtherance of such intent, he is in no better, predicament 
than if his transfer was for no consideration at a.ll.{g) An 

(a) Bhagwant v. Kedari, 25 Bom., T., 201 ; Normal Das v. Chet Earn, H 
202 (217); Freeman v. Pope, L. R., 0. C, 191 ;Janki v. Bisheshur, 12 O.C., 
5 Oh., 538. 265 : 7 I. C, 6U ; Subrmja v. Perumal, 

(b) Harmanv. Richard, 10 Hare, S9 ; 43 I. C, 956. See however, Z)amM 
Strmigv. Strong, 18BeSiV.,4:08;Bottv. v. Terry, 6 H. & N., SOI ; Hale v. 
Smith, 21 Beav., 511 ; Columbine v. Saloon Omnibus Co., 4 Drew., 492. 
Penhall, 1 Sm. & G., 228 ; Acraman v. (d) Saunders v. Watson, 4 GrifE., 179. 
Gorbett, 1 J. & H., 410; Bulmer v. (e) Chowne v. Baylis, 31 Bea,v., 351. 
Hunter, L. R., 8 Eq., 46; Amarchand (/) Mackintosh v. Pogose (1895),. 
V. Gobul, 5 Bom. L. R., 142 ; Hanifa v. 1 Ch., 505 ; Golden v. Gillman, 20 Ch- 
Punnamma, 16 M. L. J., 308 ; Eajani X>., 394 : 51 L. J. (Ch.), 503 ; Alagappa 
Kumar v. Gour Kishore, 35 Cal., 105. v. Dasappa, 24 M. L. J., 293 ; Chidam- 
But the plaintiff suing on his document baram v. Sami, 30 MaA., & ; Husain 
must prove good faith, Brajeskwar v. v. Hafiz, 5 I. C, 179 ; Hassan v. Mt. 
Buddamidi, 6 Cal., 268; Shib Narain Razia, 12 I. C, 401 ; Koolayappa v. 
V. Shanhar, 5 C. W. N., 403 ; Raoji v. Balusami, 5 M. L. T., 283 ; HaMm Lai 
Amrit Rao, 2 C. P. L. R., 63. v. Mooshahar, 34 Cal., 999. As to 

(c) Barling v. Bishopp, 29 Beav., what is good faith, see Ramasami v. 
417 ; Reese River Co. v. Attwell, L. R., . Adinarayana, 20 Mad., 465. 

7 Ec[., 347 ; Blenlcinsopp v. Blenlcin- (g) French v. French, 6 DeM. & G., 

sopp, 1 D. M. G., 495 ; Ranchoddas v. 101 ; Golden v. Gillman, supra ; Rag- 

Chunilal, 5 Bom. L. R., 213 ; Chidam- havalu v. Adinarayana, 32 Mad., 325;, 

baram v. Sami, 30 Mad., 6 ; Alagappa Aftabuddin v. Basavta Kumar, 22 C. 

V. Dasappa, 24 M. L. J.. 283 : 13 M. L. W. N., 27 : 45 I. C, 441. 



60 DEFEAUDINGf CREDITORS. [LBC. II. 

assignment in fraud of creditors can be upheld to the extent to 
which it i^ supported by consideration, (a) 

A sale of property for good consideration is not fraudulent 
and void, merely because it is made with the intention to 
in tavour^of defeat the expected execution of a judgment-creditor.(6) 
one creditor. And a bond fide assignment for the benefit of creditors 
generally is not within the Act, though made with the 
intent to delay an individual creditor, (c) Nor is such an assign- 
ment void, if otherwise honest, because it relates only to a part 
only of the estate or makes a stipulation in the debtor's favour. (<i) 
But an absolute assignment, in consideration of a past debt, of 
property of much greater amount than the debt, by a person in a 
dying state is void as against other creditors under the Statute, (e) 
Apart from the Law of Bankruptcy, a preferential transfer of pro- 
.„ . perty to one creditor cannot be declared fraudulent as to 

ettlements. other creditors, although the debtor, in making it, intended 
to defeat their claims, and the creditor had knowledge of 
such intention. (/ ) For while on the one hand there is no particular 
reason why a creditor, who by superior activity has obtained 
satisfaction or security, should disgorge in favour of a less vigilant 
creditor, who may possibly have recourse to other assets or the 
general liability of the debtor, neither on the other hand, even 
supposing all assets to have been swallowed up in the transfer 



(a) China PicJiayya v. Pedakoiak, Dixie, 7 Q. B. D., 92 ; Husain v. 

36 Mad., 29 ; Islmn Chander v. Prishu Musahib, 5 I. C, 179 -.Mame v. Masaw, 

Sardar, 2'> Cal., 825 ; Rajani Kumar v. 8 I. C, 1205 ; Mt. Mukundi v. Bulaki, 

Gmi.r Kishore, 35 Cal., 1051; Uma- 1. C., 1031 ; In re Jaladanki, U I. C, 

chakutti v. Ummerkutti, 29 I. C, 583 ; 868. 

Krinhna Kumar v. Joy Krishna, 29. (d) Maskelyne & Cooke v. Smith 

I. C, 630; Manikapalli Ramayya v. (1902), 2 K. B., 158 (1903); 1 K. B., 

China Eangayya, 10 M. L. J., 234. 671 (following Alton v. Harrison, i Ch., 

(6) Wood T. Dixie, 7 Q. B., 892; 4=22) ; Malukchandv. ManiM, 28Bom., 

Tillackchand v. Jitamal, 10 B. H. 36t. See also Palaniappa v. Rama- 

C. R., 206 ; Rajan v. Ardeshir, nathan, 2 L. W., 64, (following In re 

4 Bom., 70 ; Mahamad-unissa v. Jukes (1902), 2 K. B., 58). 

fiacAeZor, 29 Bom., 428 ; Bakht BaliY. (e) Stokoe v. Cowan, 7 Jur., N. S., 

Lakhrani, 15 I. C, 509 ; Dowlat v. 901. As to the right of a creditor to 

Keshao, 1 C. P. L. R., 59 ; Jugraj v. follow the assets of a deceased Hindu 

Kissan, 3 C. P. L. R. , 147 ; Narayana into the hands of a purchaser for value, 

V. Viraraghavan, 23 Mad., 184 ; Ishun see Jamyatram Ramchandra v. Parbu- 

Chunder v. Bishu Sirdar, 24 Cal., 825 ; dhas Hathi, 9 Bom., 116. 

HaUmlal v. Mooshahar, 34 Cal., 999; (/) Wood v. Dixie, 7 Q. B., 892; 

Shankarappa v. Ramayya, 3 M. H. C. Ex-parte Games, 12 Ch. D., 314 ; Suba 

R., 231 ; Pullen v. Ramalinga, 5 M. H., Bibi v. Balgobind, 8 All., 178 ; Hakim 

■G. R., 368 ; Fakira v. Majho, 2 Pat. Lai v. Mooshabar, 34 Cal., 999 (1018) ; 

L. J., 546; Maung Tun v. Maung on appeal 43 Cal., 621; Mina Kumari 

Pa, 36 I. C, 395 : Bakhi Bali v. v. Bijoy Singh, 44 Cal., 662 P. C. ; 

Lekhrani, 15 I. C., 599. . Maung Tun Tha v. Leong, 20 I. C, 

(c) Pickstock V. Lyster, 3 M. & S., 349 ; Mt. Ahmadi v. Raja Vdit 

371 ; Harland v. Binks, 15 Q. B., 713 ; Narain, 17 0. C, 173 : 25 I. C, 164 ; 

Evans v. Jones, 3 H. & C, 423. Mere Hanifa Bibi v. Punnamma, 16 M. L. 

intent to defeat a particular creditor J., 11 ; Peller Masten v. Kiman, 33 I. 

does not constitute fraud. Wood v. C, 695. 



Lee. II.] DEFRAUDING CREDITORS. 61 

impugned, is there any reason why the unsatisfied creditor should 
obtain the exclusive benefit of recovering from the alienated 
property when there may be others equally entitled, (a) A single- 
creditor without any charge upon the specific property alienated 
has no better right than the bond fide alienee to insist on its applica- 
tion to his claims. (6) If, however, the transfer is not in reality a 
preference of an actual debt, but is a mere colorable device to place 
the debtor's property beyond the reach of any or all of his creditors 
or if the transaction extends beyond the necessary purpose of a 
mere preference, so as to secure to the debtor some benefit or 
advantage or to unnecessarily hinder or delay creditors the transfer- 
is fraudulent. (c) It has been held that the settlement giving such 
preference can only be set aside in proceedings instituted on 
behalf of or for the benefit of all the creditors and not at the 
suit of any individual creditor whose object is only to ask the 
property in satisfaction of his own debt.(cZ) In view of the 
express provision of the Transfer of Property Act that every 
transfer made with intent to defraud the creditors of the transferor 
of immoveable property is voidable at the option of any person(e) 
so defrauded, the better procedure appears however to be to 
allow a suit at the instance of any individual creditor without 
a representative action, though the decree may declare " the 
transfer void against the plaintiff and all creditors, if any."(/ ) The 
fraudulent transfer can only be set aside in a suit properly framed, 
for the purpose and cannot be pleaded as a bar in action. (^) 

The mere fact that the settlement is voluntary will not invali- 
date it. The principle is this : The language of the Act being,. 

(a) Bhagwant V. Kedari, 25 Bom., Balmuhind, 17 C. P. L. R., 24; 
202 (213). Chattarpat Singh v. Maharaj Bahadur, 

(b) Ibid., at 215. 32 Cal., 198 P. G. ; Hakim Lai v. 

(c) Hakim Lai v. Mooshahar, 34 Mooshahar, 34 Cal., 999. 
Cal., 999 (1018) ; Eangilbai v. Vinayak, (e) S. 53. 

11 Bom., 660 (the defeat of creditors (/) Subramaniay. A. L. V. R. R. M. 

must be the dominant motive) ; Naiia Muthia, 41 Mad. 612 F. B. Per 

Mansaram v. Sautmall, 22 Bom., 255 ; Seshagiri Iyer, J., in Palaniandi v. 

Bhagwant v. Behari, 25 Bom., 202 Appavu, 30 M. L. J., 565 (contra per 

(216) ; Narayana v. Viraraghava, 23 Couts Trotter, J.). See Civil Proce- 

Mad., 184 ; Janki v. Biaheshar, 13 dure Code (1908), Ajpp. D, Form 13 ; 

O. C, 265. See also Mardan Singh v. Seton on Judgments and Orders, 6tli 

Karvnug, 13 C. P. L. R., 180 ; Ex Edn., Vol. II, pp. 2345-6 ; May on 

parte Blaclcbum, L. R., 12 Eq., 358. Fraudulent Conveyances, 3rd Edn., 

The intention to defeat a particular p. 311. See also Ishvar v. Devar, 27 

creditor is sufficient ; Fakira v. Majho, Bom., 146 ; Asan Kani v. Somasunda- 

2 Pat. L. J., 546 (following In re ram, 31 Mad., 206 ; Armugha v. 

L. R., 21 Ir., 27); Maung Krishnasami, 42 I. C, idS ; Narayana- 



Tun Tha v. Leong, 20 I. C, 349. v. Viraraghava, 23 Mad. , 184 (-where the 

(d) Motilal V. Uttam, 13 Bom., objection was not taken). As to the 

434 ; Burjorji v. Dhunbai, 16 Bom., 1 ; right to sue, see Venkateswara v. 

See also Dadapa v. Vishnudaa, 12 Somasundaram, 7L. W. 280 : 44 I. C. 

Bom., 424 ; Ebrahimbai v. Fulbai, 26 551. 

Bom., 146; Ishwar v. Devar, 2T Bom., (g) Ibid. But see contia, Abdul Kadir 

146 ; Mt. Ohampro v. Shanker, 74 P. v. Ali Mia, 15 C. L. J., 649 ; Subra- 

R., 1912 ! 14 I. C, 232 ; Mohanlal v. manya v. Dakshinamoorthi, 151. C, 193.. 



62 DEFBAUDING CREDITOES. [LeC. II. 

that any conveyance of property is void against creditors if made 
with intent to defeat, hinder, or delay creditors, — ^the Court is to 
decide in each particular case whether, on all the circumstances, 
it can come to the conclusion, that the intention of the settlor in 
making the settlement was to defeat, hinder, or delay his credi- 
tors, (a) Nor will the fact that the settlement comprises all the 
settlor's property be sufficient ground for setting it aside. (6) And 
extrinsic evidence is admissible to show, that valuable considera- 
tion was in fact given for a deed which appears on the face of it 
to be voluntary(c), or that the settlement was bond fide, though 
the practice of framing deeds so as not to show the real nature of 

the transaction carried out by them ought to be dis- 
of^se'tHo""^ couraged.(rf) The indebtedness of the settlor at the 

time of the settlement is usually relied upon as showing the 
intent to delay and defraud creditors ; but it is only one of 
the circumstances which the Court has to consider, (e) The 
indebtedness need not be to the extent of insolvency, though 
this was formerly held to be necessary. (/) But this is not 
the law now. " With respect to yoluntary settlements," said 
Wood, V. C.(^), " the result of the authorities is, that the 
mere fact of a settlement being voluntary is not enough to render 
it void against creditors : but there must be unpaid debts 
which were existing at the time of making the settlement, and 
the settlor must have been at the time not necessarily insolvent 
but so largely indebted as to induce the Court to believe that the 
intention of the settlement, taking the whole transaction together, 
was to defraud the persons who, at the time of making the settle- 
ment, were creditors of the settlor. (A) 

On the other hand, although indebtedness to this extent may 
not exist, and the property of the grantor, not subject to the 
conveyance, may be enough to pay his debts existing at the time 
-of the conveyance, it will not necessarily be good. " If," said 

(a) Thompson v. Webster, 4 Drew., (c) Richardson v. Smallwood Jac. 

«32 ; Bolloway v. Millard, 1 Madd., 556 ; Be Johnson, 20 C!i. D., 389 ; Sub, 

414 ; Holmes v. Penney, 3 K. & J., 90 ; noin. Golden v. Gillam, 51 L. J. N. S. 

Joshua, V. Alliance Bank, 22 Cal., IS") ; Ch., 503 ; Ex parte Mercer, 17 Q. B. D. 

see also Ramsay v. Gilchrist (1892), (C. A.), 290. 

A. C, 412; Simms v. Registrar of (/) Lush v. Wilkinson, 5 Yes., 3Si ; 

Probates (1900), A. C, 323. Re Mouat (1899), 1 Ch., 831. 

(6) Alton, V. Harrison, L. R., 4 Ch., (g) Holmes v. Penney, 3 K. & J., 

622; Allen v. Bonnett, L. R., 5 Ch., 99; Crossley v. Elaworthy, L. R., 12 

577; Ex parte (?am&s, L. R., 12 C. D., Eq., 158; Taylor v. Coenen, L. R., 

314 ; Natha v. Maganchand, 27 Bom., 1 Ch. Dlv., 636. 

.322; Gopal v. Bank of Madras, 16 (h) See a,lso Skarf v. 8oiilby,l Mac. 

Mad., 397 ; also Ramasami v. Adinara- & G., 375 ; Thompson v. Webster, 4 De- 

yana, 20 Mad., 455. G. & J., 600 ; affd-, 7 Jur. (N. S.), 531 ; 

(c) Gale V. Williamson, 8 M. & W., Kent v. Riley, L. R., 14 Eq., 190 ; 
405. Gananabhai v. Srinivasa Pillai, 4 M. 

(d) Thompson Y. Webster, 4 DeG. & H. C. R., 84; Deoki v. Inaitullah, 14 
J., 600 ; Godfrey v. Pooh, 13 App. All., 375 .; Krishna Kumar v. Joy 
■Gas., 497. Krishna, 23 C. L. J., 590. 



Lee. II.J DEFRAUDING CREDITORS. 63 

Lord Westbury, C.(a), " the debt of the creditor by whom the 
voluntary settlement is impeached existed at the date of the 
settlement, and it is shown that the remedy of the creditor is 
defeated or delayed by the existence of the settlement, it is imma- 
terial whether the debtor was or was not solvent after making the 
settlement. But if a voluntary settlement or deed of gift be 
impeached by subsequent creditors whose debts had not been 
contracted at the date of the settlement, then it is necessary to 
show either that the settlor made the settlement with express 
intent ' to delay, hinder, or defraud creditors,' or that, after the 
settlement, the settlor had no sufficient means or reasonable expec- 
tation of being able to pay his then existing debts, — that is to say, 
was reduced to a state of insolvency (6) in which case the law infers 
"that the settlement was made with intent to delay, hinder, or 
defraud creditors, and is therefore fraudulent and void. It is 
obvious that the fact of a voluntary settlor retaining money enough 
to pay the debts which he owes at the time of making the settle- 
ment, but not actually paying them, cannot give a different 
character to the settlement or take it out of the Statute. It still 
remains a voluntary alienation or deed of gift, whereby in the 
event the remedies of creditors are delayed, hindered, or defrauded." 

"Where the necessary consequence of a voluntary settlement 
is to delay creditors, it is not clear, whether the settlement is void 
against the settlor's creditors, as a matter of law though, as a matter 
of fact, the settlor never had such intention. In Freeman v. Pope{c), 
Gifford, L. J., said " If after deducting the property which is the 
subject of the voluntary settlement sufficient available assets are 
not left for the payment of the settlor's debts, the law infers intent." 
But in Ex parte Mercer, Re Wise(d), Lindley, L. J... said that the 
proposition that a man in point of law must be held to have intended 
the necessary consequences of his own acts is "to confuse the 
boundary between law and fact — between consequences which 
can be foreseen and those which cannot." The language of the 
Indian Act refers to " the intent to defraud " and it seems therefore 
more reasonable to say that " the Court is to decide in each 
particular case, whether on all circumstances it can come to the 
conclusion that the intention of the settlor in making the settlement, 
was to defeat, hinder or delay his creditors, "(e) It may however 



(a) Spirett v. Willows, 3D. J. & v. Rajeswara, 32 Mad., 490. But it 

S., 293; Be Hughes (1893),! Q. B. has not been overruled (see i?e HoKond, 

(C. A. ), 595 ; Chidambam v. Poonga- Gregg v. Holland (1902), 2 Ch. 360), and 

vanam, 2 I. C., 813. was on the other hand followed in 

(6) Be Jackson v. Bowley, 1 Car. & Carruthers v. Peake (1911), 55 Sol. J., 

M., 97 ; Mohanlal v. Balamukund, 17 291. 
C. P. L. R., 24 ; Burjorji v. Dhunbai, (d) 17 Q. B. D., 290. 

16 Bom., 1. (e) See Thompson v. Webster, 4 

(c) 5 Ch., 538. The authority of Drew., 628 ; Godfrey v. Poole, 13 App. 

this case was doubted in Subramanyam Gas., 697. 



64 DEFRAUDING CREDITORS. [LCC. IK 

be that the onus of proving the good faith or otherwise of the 
transaction may be shifted according as the circumstances afiord 
prima facie evidence of such intent or not. (a) 

Although the settlor may be indebted, yet if the debts are 

secured(6), or if they do not exceed such ordinary debts 

debts^ ^® every person must incur, as for instance, for ordinary 

household expenses, and if the settlor has the means of 

paying them(c), the settlement will not be void, and d fortiori the 

settlement will be good, if the settlor was solvent at the time 

he made it.(d) 

A conveyance, if otherwise within the Statute, will not be 
Considera- taken out of it merely because the consideration for it is 
tion paid not for the benefit of the grantor, but of another person. 

to third Thus, where a person in insolvent circumstances sold 

person. j^jg business in consideration, in part, of an annuity to 

his wife, it was held that the wife was not entitled to the annuity 

"as against her husband's creditors, (e) 

A voluntary settlement in which fraud is merely presumed, 

would seem to be void only as against existing creditors(/) 

^ta °*^nt ^^* subsequent creditors may sue to set it aside if any of 

only void the antecedent debtors remain unsatisfied, (p) If it can 

as agajinst be shown that the settlor, though indebted at the time he 

existing made the settlement, has since paid every debt, it is 

difficult to say that he executed it with an intention to 

defeat or delay creditors, since his subsequent payment shows 

that he had not such an intention. (^) The question is not what 

the settlor was possessed of at the time of the conveyances, but 

rather what property was left after the conveyance and whether 

it was enough to pay his debts, (i) 



(a) See Ex jparie Mercer, Be Wise, (/) Kidney v. Coussmaker, 12 Ves., 

supra ; Grossly v. Elsworthy, L. R., 12 136 ; Townsend v. Westacott, 4 Beav., 

Eq., 158, Markay v. Douglas, L. R., 14 58 ; Spirett v. Willows, 3 DeG. J. & S., 

Eq., 106 ; Cornish, v. Clarke, L. R., 14 293. 

Eq., 184 ; Azimunissa v. Dale, 6 M. H. (g) Richardson v. Smallwood Jac, 

C. R., 469 ; Burjorji v. Dhunbai, 16 558 ; Ede v. Knowles, 2 Y. & C. C. C, 

Bom.,1; 3,\so Sadasiv Y.Trimbak, 23 172; Jenkyn v. Vaughan, 3 Drew., 

Bom., 146; Ebrahimbai y. Fulbai, 26 419; Freeman v. Pope, L. R., 5 Ch., 

Bom., 577 ; Ma Myun v. Maung Ba 538 ; Stileman v. Ashdown, 2 Atk., 

Tha, 33 I. C., 945. 481 ; As to subsequent creditors, see 

(6) Stephens t. Olive, 2 Bro. C. C, also Asan Kani v. Somasundaram, 

90 ; Skarfy. Soulby, 1 Mao. & G. 375 ; 31 Mad., 206. Vaikuntarama v. 

Kanchana v. Bijnath, 19 Cal., 336. Adimoolam 26 M. L. J., 612 ; Thomas 

(c) Skarf V. Soulby, 1 Mao. & G., v. Muthurama, 33 Mad., 205; Vasvdev 
375 ; Lush v. Wilkinson, 5 Ves., 387 ; v. Janardan, 39 Bom., 507. 

Kent V. Riley, L. R., 14 Eq., 190. (h) Jenkyn v. Vaughan, 3 Drew., 

(d) Kent v. Riley, L. R., 14 Eq., 190. 425. 

(e) French v. French, 6 D. M. G., (i) Jackson v. Bowley, 1 Lar. & M. 
95 ; Neale v. Day, 4 Jur., N. S., 1225 ; of 7 ; Mohan Lai v. Balmokund, 17 
Hakimlal v. Mooshahar, 34 Cal., 999. C. P. L. R., 24. 



Lee. II.] DEFRAUDING CREDITORS. 65 

A deed, in fact fraudulent, and executed expressly to hinder 
and delay future creditors, may be impeached by them, 
though there were no creditors at the date of the deed, Unless 
or they have subsequently been paid, (a) But if at the 
date of the settlement, the settlor had ample means, the fact that 
some years later it has the effect of delaying subsequent creditors 
is not sufficient to set it aside. (6) 

It is not necessary that a creditor should have obtained a 
judgment, lien, decree or charging order ; without any of these 
he may sue to impeach the validity of a fraudulent conveyance. 
But he must have obtained such a jxidgment, &c., before he can 
have execution against the property comprised in the deed.(c) 

The settlement is only void to the extent necessary to deal 
with the estate for the satisfaction of the creditors, the cre- 
ditors of the settlor((i), and is good as against the grantor ^°y ^^'^ 
and his assignees (e), parties who assent to, and concur in, yoid^™^" 
it(/ ) ; such as volunteers claiming under him, for 
instance, devisees(g') and strangers. (^) If the property fraudu- 
lently conveyed gets inseparably mixed up with other assets 
of the assignee, its equivalent in money will represent it.(z) 

In all other respects it is good, and will not be set aside merely 
because it is voluntary. (_7) 

If the conveyance or settlement be voidable, the voluntary 
grantee may, before it is avoided, make a valid transfer to a pur- 
chaser for value. (A:) To avoid a prior conveyance, however, to a 
volunteer, the subsequent purchase must be for value, and. Subsequent 
the consideration must not be grossly inadequate, or a pre- purchase 
sumption of fraud and coUusion will arise, (i) When the must be for 
subsequent conveyance is a mortgage, the voluntary ^^ '^^' 

(o) Thomas PiUay v. Muthuraman, general estate). 

33 Mad., 205 (subsequent creditors are (e) Bobinson v. McDonnell, 2 B. & 

included in the section). See also Aid., 134. See also Be Carter and 

Hussein Bhai v. Haji Ismael, 5 Bom. Kenderdine. (1897), 1 Ch., 726 ; Ideal 

L. E., 255; Sadasiv v. Trimbak, 23 Bedding Co. v. Holland (1907), 2 Ch., 

Bom., 146 ; Ebrahimbai v. Fulbai, 20 157. 

Bom., 577. (/) Olliver v. King, 2 Jur..N. S., 

(6) Re Lane Fox (1900), 2 Q. B., 508. 312. 

(c) Beese Biver Company v. Atwell, (g) Villiers v. Beaumont, 1 Vem., 

L. R., 7 Eq., 347 ; Colman v. Croker, 100. 

1 Ves., J., 161 ; Goldsmith v. Russell, (h) Besseyv. Windham, 6 Q. B., 16G. 

5 D. M. G., 547 ; Collins v. Burton, (i) In re Mouat (1899), 1 Ch., 831. 

4 D. & J., 612 ; Ishwar v. Dewar, 27 ( j ) Bill v. Cureton, 2 M. & K., 503 ; 

Bom., 146 ; Jogeshwar v. Kunjiram, 16 De HoghUm v. Money, L. R., 1 Eq., 

C. P. L. R., 164. 154. 

{d) Curtis V. Price, 12 yea., 89. See (fc) Morewood v. South Yorkshire 

also Tarleton v. Liddell, 17 Q. B., 418. Railway Company, 3 H. & N., 798 ; 

SeeMallotv. Tfi7sore (1903), 2 Ch., 494 Daubeny v. Coekbum, 1 Mer., 626. ^ 

(the beneficiaries were entitled to have {I) Doe v. Boutledge, Cowp., 705; 

the debt discharged out of the settlor's Metcalfe v. Pulvertoft, IV. & B., 184. 



A, LT 



5 



66 INSOLVENCY. [Lec. II. 

grantees will be entitled, subject to the mortgage, (a) There is an 
exception to the rule in the case of charities, for a voluntary 
endowment of a charity will not be defeated by a subsequent 
conveyance for value. (&) 

The Indian Insolvency Acts(c) provide for conveyances, in 
fraud of creditors. A debtor commits an act of insolvency, 
Indian ^f jjj British India or elsewhere, he makes a transfer of his 

Ac^ts.'* property to a third person for the benefit of his creditors 

generally, or with intent to defeat or delay his creditors, 
or if such transfer would, under anj' law for the time being in force, 
be void as a fraudulent preference if he were adjudged an insolvent. 
Every transfer of property or of any interest therein, every pay- 
ment made, every obligation incurred, and every judicial proceeding 
taken or suffered by any person unable to pay his debts as they 
become due from his own money in favour of any creditor, with 
a view of giving that creditor a preference over the other creditors, 
shall, if such person is adjudged insolvent on a petition presented 
within three months after the date thereof, be deemed fraudulent 
and void as against the receiver and shall be annulled by the 
Court. The rights of any person who in good faith and for valuable 
consideration has acquired a title through or under a creditor of 
the insolvent are not affected. Any transfer of property not being 
a transfer made before and in consideration of marriage or made 
in favour of a purchaser or incumbrancer in good faith and for 
valuable consideration shall, if the transferor is adjudged insolvent 
within two years after the date of the transfer, be void against the 
receiver and may be annulled by the Court, ((i) 

To constitute a fraudulent preference, two things must concur — 
1st, the act of preference must be voluntary on the part of the 
debtor ; 2ndly, it must have been done by him when in such a state 
of insolvency, as that, it may or must be inferred, that bankruptcy 
was then in his consideration. And therefore when an assignment 
or conveyance is made by a debtor to a creditor upon the demand 
of the latter for payment or security, it will not be fraudulent, (e) 



(a) Hales v. Cox, 32Beav., 118. Eq., 648; a£Ed., L. R., 6 Ch., 70; 

(6) Corporation of Newcastle v. Official Assignee v. Brij Kishore, 3 

The Attorney-General, 12 C. & P., A. L. 3.. 60i; Flora Cronan v. Ojficial 

402. Assignee of Madras, 9 M. L. T., 211 : 

(c) Act III of 1909 (Presidency- (1910), M. W. N., 822 ; /ji re ..IfiiAomai 
towns) ; Act III of 1907 (Provincial). Dwarkadas, 31 I. C, 50. As to a 
These replaced the Statute 11 & 12 loan made on the eva of insolvency, 
Vic, 0. 21 in the Presidenoy-town-s see In re Bungseedhur Kliettry, 
and the C. P. Code of 1882 in the 2 Cal., 359; and as to a pledge of 
moff usal. good s by an insolvent and re-delivered 

(d) Act III of 1909, ss. 9, 44 ; Act to him on commission sale, see In 
III of 1907, sa. 4, 37. re Mwrray, 3 Cal., 5S. 

(e) Ex parte Tempest, L. R., 10 



Lee. II.] CONSIDERATION. 67 

The 5th section of the Statute 27 Eliz., cap. i, relates to 
conveyances with power of revocation and its provisions convevances 
have been re-enacted in India. The Transfer of Property with power 
Act (s. 42) declares that " where a person transfers any o' revoca- 
immoveable property, reserving power to revoke the *'°"" 
transfer, and subsequently transfers the property for considera- 
tion to another transferee, such transfer operates in favour of 
such transferee (subject to any condition attached to the exercise 
of the power) as a revocation of the fornaer transfer to the extent 
of the power." (a) 

It avoids the first conveyance, though to a purchaser for 
value(6), and cannot be evaded by making the exercise of 
the power apparently conditional, as that the consent of a statute* 
third person appointed by the grantor shall be obtained, (c) 

The reservation of an unlimited power of leasing is in effect 
a general power of revocation, (ti) So, a power to mortgage, unless 
it be limited to a specified sum upon an estate of much greater 
value, (e) 

A settlement with power of revocation is void as against a 
subsequent purchaser, although the settlor has released or 
extinguished the power previously to the sale (/) ; unless the 
release was for value, the settlement containing the power being also 
for value, (gr) 

Conveyances or settlements will not be void as against pur- 
chasers or creditors if supported by a valuable considera- 
tion, except in cases where a power of revocation is reserved Valuable 
to the settlor ; the mere quantum of consideration is in ji°„ ' ^'^^' 
general not material. (A) 

Marriage, according to English law, is a valuable consideration, 
and will support a settlement (^), though, as a genei;al ^^^^^-^^^ ^ 
rule, a settlement after marriage even upon a wife or 
children is voluntary, there being merely a moral consideration 
which will not support a promise or settlement.( j') But an 
additional portion received by the wife after the marriage will 
support a post-nuptial settlement on her and her children, (fc) 

(a) See also Indian Trusts Act, {g) Sug. V. & P., 722. 

g. 78. (h) Townend v. Taker, L. R., 1 Ch., 

(b) Hungerford v. JEarle, 2 Vem., iib ; Bayspoole v. Collins,!,. B,., 6 Ch., 
261. 228. 

(c) Standen v. Bullock, SB,eT[>.,S2, b ; («) Ford v. Stuart. 15 Beav., 499; 
Lavender v. Blackston, 3 Keb., 527. Fraser v. Thompson, 4 D. & J., 661. 

(d) Lavender v. Blackston, 3 Keb., {j) Jeffrey v. Jeffrey, 1 Or. & Ph., 
627. 138 ; Moore v. Crofton, 3 J. & Lat., 

(e) Jenkins v. Keymis, 1 Lev., 150. 438. 

{f) Bullock V. Thome, QitedinSng. {k) Ward v. Shallett, 2 Ves., 18; 

"V. & P., 722. Ramsden v. Hylton, ibid, 308. 



68 EVIDENCE TO PEOVE CONSIDERATION. [LeC. II. 

A release by a wife of the past income of property settled to 
her separate use, or her concurrence in a particular settlement(a), 
or the release of her iointure(6), or right of dower(c), or a charge 
by her upon her own estate((Z), or even the permission to marry 
a second wife(e) will support a settlement by her husband. So 
the payment of the settlor's debts by a third person is a good con- 
sideration for a settlement upon his wife and children(/), and a 
loan to him will be a good consideration for a settlement upon 
himself for life with remainder to his children. ((7) 

So if a person incur expenses on the faith of a settlement, 
and in addition enters into a covenant to indemnify the settlor 
against certain incumbrances, there will be a good consideration 
for a settlement, (fe) 

The release or surrender of a voluntary bond is a good con- 
sideration to support a substituted bond, unless with a fraudulent 
design, as by an insolvent to substitute an available security for 
one that could not avail against creditors, (i) 

Settlements founded upon immoral considerations are of 
course void. 

A settlement in form voluntary may be shown from extrinsic 

Extrinsic evidence to have been made for valuable consideration. ( j ) 

evidence And, if necessary, an inquiry may be directed as to whether 

admissible the settlement was founded on any and what valuable 

to show con- consideration, for the consideration need not actually 
sideration. ,7» ■' 

appear, (k) 

In Bayspoole v. Collins{l), the owner of property, which was 
worth, beyond an incumbrance to which it was subject, about 
£1,300, was persuaded by A, a relative of his wife, to make a post- 
nuptial settlement of it on his wife and children. As an inducement 
to do this, A lent him £150 on his promissory note. The settlement 
was executed, but. no mention was made in it of the advance of 



(a) Harman v. Richards, 10 Hare, I. 0., 744. 

81. ( /) Holmes v. Penny, 3 K. & 

(6) Ball V. Burnford, Preo. Ch., J., 90 ; Scott v. Scott, 4 H. L. Cas., 

113. 1065. 

(c) Jones V. Boulter, I Cox, 288 ; (</) Thompson v. Webster, 7 Jur., 

Abdul V. Salima, 8 All., 149 P. C. ; Suba N. S., 531. 

Bibi V. Balgobind, 8 AH., 178 ; Abbas (h) Townend v. Taker, L. E., 1 Ch.,. 

Ali v. Karim Baksh, 13 C. W. N., 160 ; 446.. 

In re Seth Nemichand, 5 I. C, 316 ; (i) Ex parte Sorry, 19 Ves., 218. 

Mohammad Hashim v. Sadiq Husain, ( j ) Pott v. Todhunter, 2 Coll., 76. 

14 0. C, 356 : 13 I C, 882 ; Nasi- (i) Kelson v. Kelson, 10 Hare, 385 ; 

munissa v. Abdul Kadir, 20 0. C, 895. Chilly v. The Bishop of Exeter, 2 Moo. 

{d) Lady Arundel v. Phipps, 10 & P., 266 ; Mildmay's case , 1 Rep.,, 

Ves., 139. 176 ; Leifchild's case, L. R., 1 Eq.,. 

(e) Kapini Goundan v. Saranqapani 231 ; Tull v. Parlett, M. & M., 472. 

Ooundan (1916), 1 M. W. N., 288 : 34 (0 L. R., 6 Ch., 228. 



Lee. II.] SBTTIUG ASIDE SETTLEMENT. 69 

£150. It was held, that the loan was a suflScient valuable consider- 
ation to support the settlement against a subsequent mortgagee 
of the settlor. 

A conveyance to a trustee in trust to pay the debts of the 
grantor, although it may be void as regards them, will, never- 
theless, entitle the assignee to take proceedings against persons 
in possession of the property which is assigned, (a) 

AVhere a settlement or conveyance, whether by transfer of 
property or declaration of trust respecting it, is effectual, g ... 
and not open to objection upon any of the foregoing not set aside 
grounds, the grantor cannot avoid it, nor will the Court set as against 
it aside. Although the Court will not assist the completion g'^^ntors. 
of voluntary deeds, it does not lay down, as a rule, that they are 
always void ; the mere alteration of intention is not sufficient to 
induce the Court to interfere and cancel an instrument which was 
fully understood and deliberately executed by the grantor. (6) 

And a settlement will not be revoked though the trustees of 
the property re-convey it to the grantor(c), in which case they 
will be guilty of a breach of trust. (^) 

So the settlement will remain in force, though the settled 
property may come back into the hands of the settlor, (e) 

In Forshaw v. Welshy(f ) il was held, that a voluntary settle- 
ment containing no power of revocation, made by a person y j ^^ 
in expectation of death, ought to be set aside at his instance, settlement 
as it was not intended to be operative in the event of his in expecta- 
recovery. Each case, however, must depend upon its own j'""!^^ 
circumstances. The absence of a power of revocation in 
voluntary settlements is an important circumstance in consider- 
ing them. When they are not intended to be irrevocable, such a 
power should be inserted. Where it is wanting, the argument is 
usually urged that the non-insertion is contrary to the intention 
of the settlor, particularly where the settlement is for the benefit 
of persons to be ascertained at a future time.(^) 

Where the settlor asks to have the deed set aside on the ground 
of fraud, mistake or undue influence, the onus of proving it is on 

(a) Glegg v. Sees, L. B., 7 Ch., 71. 345 ; Gilbert v. Overton, 2 H. & M., 110. 

(6) Bill V. Gureion, 2 M. & K., 503 ; (/ ) 30 Beav., 243 : and see PMllipa 

Taker v. Taker, 31 Beav., 629; affd., v. Mullings, L. R., 7 Ch., 244; see 

3 DeG. J. & S., 487 ; Shafio v. Adams, Suddasook v. Ram Chunder, 17 Cal., 

4 Gift; 492. 620. 
(c) Ellison Y. Ellison, 6 Ves., 056 ; (g) Farshaw v. Welsby, 30 Beav., 



. V. Li/ne, 2 Y. & C. C. C, 345 ; 243 : and see Nanney v. Williams, 22 

Paterson v. Murphy, 11 Hare, 88. Beav., 452 ; Hall v. Hall, L. R., 8 Ch., 

(d) M'Donnell v. Hesilrig, 16 Beav., 430 ; Re Blake, 37 W. R., 441 ; Be 
346. Mamank, 40 Ch. D., 461. 

(e) Smith v. Lyne, 2 Y. & C. C. C, 



70 RECTIFYING SETTLEl^ENT. [LCC. II. 

the settlor, except where the settlement contains provisions so- 
absurd and improvident that no reasonable person would have- 
consented to them or where the beneficiary occupied a fiduciary 
position towards the settlor at the date of the settlement, (a) 

The Court will not rectify a voluntary settlement at the 

. instance either of the grantor or of the grantee, unless. 

setOement there has been a mistake common to all parties(&) : and 

where it does not express the intention of the parties,. 

and is impeached, it cannot be reformed except with the consent. 

of the donor, (c) 

The mere retention of the instrument of settlement or gift 
by the settlor is immateiial, if there is nothing to show that th& 
settlor did not intend it to operate immediately. ((^) 

So is its destruction and the non-communication of its con- 
tents to the trustees or cestui que trust{e), and if found 
Enforce- cancelled among the papers of the grantor after his death, 

it will be enforced against his representatives upon the pre- 
sumption that it was improperly cancelled. (/) 

An instrument vesting property in trustees for the benefit of 
the grantor for his life, and after his decease, for the benefit of 
other persons, with a power of revocation, is valid, and is not 
testamentary. (^) 

A settlement complete and vahd, having regard to the above- 
mentioned rule, is binding on the settlor or grantor, and 
On whom ^^ Yds heirs and legal representatives and devisees(^), and 

'" '"^' persons claiming under them though for value, (t) - 

A person who takes by title paramount to the settlement,, 
and does no act to repudiate it, will, in general, be considered to 
have acquiesced in it.(j) 



(a) Duiton v. Thompson, 23 Ch. D., 212 ; Cavendish v. Simii, 19 T. L. R., 

218; Henry v. Armstrong, 18 Ch. D., 483. 

668 ; Phillips v. MuHings, 7 Ch., 244. (e) PhilUpson v. Kerry, 32 Beav., 

The contrary rule laid down in the last 628. 

edition on the authority of Coutts v. (d) Doe v. Knight, 5 B. & C, 671. 

Achworth, L. R., 8 Eq., 558, Wollaston (e) Fletcher y. Fletcher, 4 Hare, 67 ; 

V. Tribe, L. R., 9 Eq., 44 and Everitt v. Re Way, 2 D. J. & S., 365. 

Everitt, L. R., 10 Eq., 405, must be (/) Sluyskenv. Hunter, I Mer., 40. 

taken to have been definitely overruled. (g) Thompson v. Brovn,S M. & K., 

See also Allcard v. Skinner, 36 Ch. D., 32. 

145; Morley v. Lovghman (1893), 1 (h) Jeffreys v. Jeffreys, Cr. and Ph., 

Ch., 736. 138; Hales v. Cox, 32 Beav., 118; 

(6) Bentley v. Mackay, 31 Beav., Oitbert v. Overton, 2 H..& M., 110. 

143 ; Brown v. Kennedy, 33 Beav., 133 ; (i) Lewis v. Rees, 3 K. & J., 132 ; 

Thompson v. Whitmore, IJ. & H., 268 ; Doe v. Rusham, 17 Q. B., 723. 

Lister v. Hodgson, L. R., 4 Eq., 30 ; {j) Thompson v. Finch, 22 Beav., 

see James v. Couchman, 29 Ch. D., 316. 



Lee. II.] REVOCATION OF CREDITORS' DEEDS. 71 

All who claim under the instrument of trust are entitled to 
the benefit of it, and a settlement in favour of unborn children is, 
according to English law, binding and irrevocable unless a power 
of revocation be reserved, (a) 

A question frequently arises how far deeds for the payment 
of creditors are revocable. As to this it has been held, _ ... , 
that a conveyance for the benefit of creditors is revocable deeds how 
if it has not been communicated to them(6), but not if com- far revoc- 
municated to them, or some of them, and they assent to ^'''^■ 
it.(c) A conveyance even to one creditor in trust for himself and 
others cannot be revoked after it has been communicated to him 
unless he has dissented. ((?) 

The principles applicable to creditors' deeds were fully dis- 
cussed by the Lords Justices in the case of Johns v. 
James. (e) There a debtor conveyed all his property to the j^^ '^' 
defendants upon trust to pay thereout a sum of £5,000, 
which they were to raise on his behalf, and all other debts due from 
the assignor, including a debt due to the plaintiff. The defendants 
realized the property of the assignor, and alleged that they had 
paid some of the debts out of the proceeds. The plaintiff brought 
an action against the defendants, asking for an account of the 
property, and that the debts of the plaintiff and the other creditors 
might be satisfied thereout. The statement of claim contained no 
allegation that the assignment had been communicated to the 
plaintiff. It was held, that the defendants were not trustees for the 
plaintiff. James, L. J., said : — " It appears to me to be too late 
now to question the principle of Garrard v. Lord Lauderdale.(f) 
That case seems to me to have proceeded upon the plainest notion 
of commonsense. It is quite obvious that a man in peciuiiary diffi- 
culties having a great number of debts which he could not meet, 
might put his property in the hands of certain persons to realize 
and pay the creditors in the best way they could. It was held by 
the Vice-Chancellor, and it has been affirmed, that really after all 
that is only making those particular persons who are called trustees 
his agents or attorneys. There might be a power-of-attorney 
from him to realize all his property, and relieve him from the 
difficulties he was in. If it were supposed that such a deed as that 
created an absolute irrevocable trust in favour of every one of the 

{a) Petre v. Espinasse, 2 M. & K., Manikji v. Maroj Palanji, 1 B. H. 0. 

496 ; Bill v. Cureton, ih., 503. B., 233. 

(6) See Indian Tnists Act, 5. 78 (c). (d) Siggers v. Evans, 5 E. & B., 367 ; 

Acton V. Woodgaie, 2 M. & K., 492 ; Montefiore •!. Brown, 7 H. L. C, 241. 

Wallwyn v. Coutts, 3 Mer., 707 ; Browne (c) L. R., 8 Ch. Div., 744 ; Re Ashby 

V. Cavendish, 1 J. & L., 606 ; Sayed (1892), 1 Q. B., 872 ; Re Sander's 

Zakir AH v. Mt. Ummatul, 1 I. C, 347. Trusts, 47 L. J. N. S. Ch., 667 ; Priestley 

(c) Griffith V. Eicketts, 7 Hare, 307 ; v. Ellis (1897), 1 Ch., 489 ; Sangilbhai 



Nicholson v. Tutin, 2 K. & J., 18; Re v. Vinayak, 11 Bom., 166. 
Ashby (1892), 1 Q. B., 872 ; Bamonji (/) 2 R. & M., 4.51. 



72 REVOCATION OF CREDITORS' DEEDS. [LBC II. 

persons who happened at the time to be a creditor, the result 
might have been very often monstrous. It would give him no 

opportunity of paying a creditor who was pressing ; no 
J es'' opportunity of settling an action ; no opportunity of getting 

any goods for himself or his family the next day, or redeem- 
ing property pledged. So, where there was an actual conveyance 
on trust, it was held in Wallwyn v. Coutts{a), that where it was for 
all the creditors, it must be assumed from the very nature of the 
transaction, and from the position of the assignor, that it was a 
thing for his own benefit, and not for the benefit of numbers of 
persons whom the trustees would probably have no means of 
ascertaining, and whose debts the trustees would probably have 
no means of knowing. If you once assumed that this was an 
absolute trust in favour of every creditor, every person who had a 
right to claim to be a creditor, or had some demand against him, 
everyone of those might have filed a bill, and the unfortunate 
trustee under those circumstances (who might have acted the part 
of a friend to the impecunious person) might have been liable to 
a thousand bills in Chancery, for he could not stop any of them 
until a decree was made in favour of all the creditors. 

Those are some of the reasons that appear to me to have led 
the Court to say that such a deed as this is to be construed as a 
mandate, the same sort of mandate that a man gives when he 
gives his servant money, with directions to pay it in a particular 
way ; it does not create any equitable or legal right in favour of 
a particular creditor. The right to the direction of the money is 
the right of the person who has put the money in the hands of his 
agent or steward, or whoever he may be. Wallwyn v. Coutts{a) 
laid that down as the law where the deed was for creditors generally. 
Garrard v. Lord Lauderdale{h) only extended it to the case where 
the names of the creditors were scheduled, and the amounts due 
"were scheduled, and that was held not to make any difference ; 
and from that time to this, I believe, that has been the doctrine of 
the Court. The deed itself does not create a trust in favour of all 
and every or any of the creditors. But circumstances may have 
occurred, circumstances may have existed, which did make the 
assignment a trust or an obligation in favour of some particular 
person. If the creditor has executed the deed himself, and been 
a party to it, and assented to it — if he has entered into obligations 
upon the faith of the deed, of course that gives him a right, just as 
in the case where a man receives money from a person, on a direc- 
tion from his creditor to pay some other person instead of pajdng 
him, and he communicates it to this person. The person to whom 
he communicates it of course has a legal right to have the money 
so applied, but that does not enure for the benefit of any other 

(a) 3 Mer., 707. (6) 2 R. & M., 451. 



Lee. II.] RETOCATION OF CKEDITORS' DEEDS. 73 

person or persons to whom no such communication has been made. 
It seems to me that on principle you cannot create a right in A 
where the deed has not given him a right, because something has 
occurred giving B a right, who originally was in the same position 
as A. That was in fact the principle of the decision in Acton v. 
Woodgate{a), for in that case there being beyond all question a 
trust-deed in favour of all the creditors, including certain post obit 
creditors, whom the settlor was afterwards minded not to put on 
the same footing as his other creditors, the settlor directed that 
they should be excluded from the benefit of the deed ; and it was 
held by the Court that it was perfectly in his power to do so, and 
the deed remained still as a deed to be executed in favour of all 
the creditors except the post obit creditors, and they 'were not 
cestuis que trustent by the deed. It has been called a partial revoca- 
tion. It is not a case of revocation in one sense ; you cannot 
revoke the deed, and cannot get the property out of the hands of 
the trustee until, at all events, you have satisfied all the charges 
and expenses he has incurred, and any right he has acquired in the 
property. It is not a revocation of the deed, but it is a revocation 
of the directions given by the deed to the assignor's agent as to 
what he shall do with the proceeds. It appears to me that this is 
clearly a case of the same kind as Wallwyn v. Goutts{b), and Garrard 
V. Lord Lauderdale{c), viz., the case of a creditor to whom no 
communication has been made, who. has never been induced to act 
by any thing that occurred by reason of the execution of the 
deed." 

If the deed has been communicated to the creditors and acted 
upon, it would make them cestuis que trustent and the deed irrevoc- 
able, (d) Where the object of the debtor was not to provide for 
payment of debts generally but to shield himself from the conse- 
quences of breaches of trust(e), or where the deed is applicable 
only to a particular class of persons and not to all creditors gener- 
ally(/ ), or where the deed provides for payment of the settlor's 
debts at his death with remainders over(p), the doctrine of revo- 
cabUity laid down in Garrard v. Lauderdale does not apply. So 
a deed of trust in favour of creditors with an ultimate provision 
for the settlor's wife and children was" held to be irrevocable, {h) 



(a) 2 My. & K , 492. Banking Co. (1901), 2 Ch. (C. A.), 231. 

(6) 3 Msr., 707. (/) Smith v. Hurst, 10 Hare, 30 ; see 

(c) 2 R. & My., 451. also (1897), 2 Q. B., 26. 



{g) Priestley v. Ellis (1897), 1 Ch., 
489 ; Ee Fitzerald's Settlement, 37 Ch. 
D. (C. A.), 18; Tynnot v. 



{d) Harland v. Binks, 15 Q. B., 713 
Cosser v. Radford, 1 D. J. & T., 585 
Siggers v. Evans, 5 E. & B., 367 
Wilding v. Richards, 1 Coll., 655. 5 H. L. Cas., 121. 

(e) New <b Oo.'s Trustee v. Hunting (A) Godfrey v. Poole, 13 App. Cas., 

(1897), 1 Q. B , 607 ; sub. n .m. Sharp v. 497 ; Qolam v. Official Trustee of Bengal, 
Jackson (1899), A. C. (H. L.), 419. 8 Cal., 887. 
See also Taylor v. London and County 



74 



TRUST BY WILL FOR PAYMENT OF DEBTS. [LCC. II» 



If a time be limited for the execution of tlie deed by the 
creditors, those who refuse to execute it will be excluded 
of'deedb" ^''^^^ ^^ benefits, (a) So if they claim adversely to it(6), or 
creditors?' ^ct inconsistently with it.(c) And a creditor cannot be 
said to have acceded to the provisions of a composi- 
tion-deed unless he has put hinaself in the same situation with 
regard to the debtor as if he had actually executed the deed.(«?) 

But mere delay in executing the deed by creditors who never- 
theless act under it will not disentitle them to participate in its 
benefits(e), if,they do eventually execute the deed or show in some 
way that they accept it.(/) 

A creditor having security, who assents to, and executes, the 
deed, which contains a release by the creditors of the debts due ta 
them, must share rateably with the other creditors and give up 
his security, unless the deed provides for his retaining it.(g) 

A trust by will for the payment of the debts of a third person 
Trust by ^^ *^® discretion of trustees applies, it has been held, 

will for for the benefit of creditors subsequent to the death of the 

payment of testator. (A) A debt barred by limitation will not be 
revived by a direction to pay debts(i) ; but if not barred 
at the date of the deed or time of the death, the trust will pre- 
vent the operation of the Statute afterwards.( j) 

A trustee of an estate devised for payment of debts, although 
he is executor, has no right of retainer, but must share rateably 
with the other creditors, (fc) 



debts. 



[a) Johnson v. Kershaw, 1 DeG. i 
Sm., 260. 

(6) Watson v. Knight, 19 Beav. 
369. 

(c) Field V. Lord Donoughmore, 1 
& War., 227. 

(d) Forbes v. Limond, i D. M. 
298. 

(e) Nicholson v. Tutin, 2 K.. & 
18 ; Raworthv. Parker, ib., 163 
more v. Turquand, 3D. T. & J, 
Re Bauer's Trust, L. R., 10 Eq 



Dr. 



& J., 

Whit- 
107; 
554. 



(/) Bironv. Mount, 24 Beav., 642. 



i,g) Buck V. Shippam, 1 Ph., 694 ; 
CuUingworth v. Loyd, 2 Beav., 385. 
As to the case of a creditor having the 
security of a surety, wlio himself holds 
security of the debtor, see Midland 
Bank v. Chambers, L. R., 4 Ch., 398. 

{h) Joel v. Mills, 7 Jur., N. S., 389. 

(») Burke v. Jones, 2 V. & B., 275 ; 
Joel V. Mills, 7 Jur., N. S., 389. 

(j) Crallan v. Oulton, 3 Beav., 1 ; 
O'Connor v. Haslam, 5 H. L. Cas., 178. 

(h) Bain v. SadUr, L. B., 12 Eq., 
570. 



LECTURE III. 

IMPLIED AND RESULTING TRUSTS. 

Implied Trusts — Precatory Trusts — Objects, property, and trust must be 
described — Words of recommendation and entreaty — Intention to give 
absolutely — Intermediate class of cases — Maintenance — Property 
acquired with notice of existing trust : Indian Trusts Act, s. 91 — 
Agreement to settle property — Vendor trustee for vendee — Resulting 
Trusts — Undisposed of interest : Indian Trusts Act, a. 83 — • Excluding 
heirs — Parol evidence to rebut presumption — Illegal purpose : Indian 
Trusts Act, ss. 84-85 — Trust to sell — Trusts vague : No trust declared 
— Trust declared of part only of estate — Transfer of stock or money into 
name of another — Purchase in name of trustees — Purchase in name of 
stranger — Expression of wish — Delay — Rule applies to joint purchase — 
To personal as well as real estate — Purchase in fiotitioiis name — Parol 
evidence admissible on part of person paying purchase-money — Parol 
evidence on behalf of person to whom conveyance made — To rebut pre- 
sumption as to part of the property — Statute of Frauds — Conveyance to 
stranger without consideration — Purchases in the name of a wife or child 
no resulting trust — Reputed wife — Person in loco parentis — Purchase by 
a mother — Purchase in name of nephew — Fiduciary relationship — Pur- 
chases void as against creditors — Rules apply to personal estate — Surround- 
ing circumstances to be considered — Purchase-money unpaid — Joint 
tenancy when created — Purchase in the name of a child and a stranger — 
Evidence to rebut presumption of advancement — Subsequent acts and 
declarations — Possession by father — Dividends received by father — 
Devise, bequest, or lease — Child fully advanced; 

Hitherto we have dealt with express trusts only. A person, 
however, may show an intention to create a trust, and this 
will be carried out by the Court by means of an implied xTusts. 
trust. 

The general rule as to implied trusts is thus laid down by 
Mr. Lewin(a), — " Wherever a person having a power of disposition 
over property, manifests any intention with respect to it in favour 
of another, the Court, where there is sufficient consideration, or in 
a will where consideration is implied, will execute that intention 
through the medium of a trust, however informal the language in 
which it happens to be expressed." 

An implied trust may be created in a will or deed(&) by words 
expressive of recommendation, direction, or entreaty, as Precatory 
where the author of the trust gives property and diTects(c), Trusts. 



(a) Lewin on Trusts, 12th Ed., 266 ; ffi« v. ffiZi (1897), 1 Q. B. (C. A.),' 
i48. 483. 

(6) Liddard v. Liddard, 28 Beav., (c) White v. Bnggs, 2 Pb., 583. 



76 



PEECATOEY TRUSTS. 



[Lec. III. 



coiifides(a), or trusts and confides(6), liopes(c), doubts not{d), 
recominends(e), we]lknows(/), entreats(5'), desires(A), or wills and 
desires(t), requests(y), or wishes and requests(/(;), or requires 
and entreats(Z), wills(m.), wishes and desires(ra), most heartily 
Ibeseeches(o), orders and directs(p), authorizes and empowers(g'), 
is well assured(r), has the fullest conMence(s), trusts(«), well 
knows(M), has full. assurance and confident hope(«), is under the 
firm conviction (w), or in the full belief (a;), or expresses his belief, 
that the legatee will give{y) the property in a particular manner. 
In such cases the Court will enforce the implied trust in favour of 
the person named or indicated(z), and compel the person in whom 
the confidence is reposed to give effect thereto, (aa) 

^ert^'^*and'° "^^^ property must be described with certainty. (66) 

trust must ^^^ ^^® objects, property, and way in which it shall go 
be described, must be pointed out. (cc) 



(a) Griffiths v. Evans, 5 Beav., 241 ; 
Shepherd v. Nottige, 2 J. & H., 766. 

(6) Wood V. Cox, 1 Ke., 317 ; Palmer 
V, fiimnionds, 2 Drew., 224 ; Macnab v. 
Whitbread, 17 Beav., 299 ; Pilkinglon 
V. Boughey, 12 Sim., 414. 

(c) Harland v. Trigg, 1 Bro. C. C, 
142. 

(d) Paul V. Oompton, 8 Ves., 380 ; 
Parsons v. Baker. IS Ves., 476 ; Taylor 
V. George, 2 V. & B., 378 ; Sale v. Moore, 
1 Sim., .534. 

(e) Horui'tod v. West, 1 S. & S., 387 ; 
Paul v. Qomjiton, 8 Ves., 380 ; Tibbits 
V. Tibbits, 19 Ves., 656; Malim v, 
Keighley, 2 Ves. J., 335 ; Hart v. Tribe, 
18 Beav., 215 ; Meggison v. Moore, 2 
Ves. J., 630 ; Meredith v. Heneage, 1 
Sim., 553. 

( /) Briggs v. Penny, 3 Mac. & G. , 546. 

(g) Prevosi v. CZaric, 2 Madd. , 458 ; 
Meredith v. Heneage, 1 Sim., 553 ; 
Taylor v. George, 2 V. & B., 378. 

(h) Harding v. Olyn, 1 Atk., 469 ; 
Bonser v. Kinnear, 2 Giff., 195 ; Cary 
V. Cary, 2 Sch. & Lef., 189 : but see 
Re Diggles, 39 Ch. D. (C. A.), 253. 

(«) Eeles V. England, 2 Vem., 466 ; 
Birch V. Wade, 3 V. & B., 198 ; F.orbes 
V. Ball, 3 Mer., 437. 

( j ) Pierson v. Garnett, 2 Bro. C. C. , 
38, 226 ; Bernard v. Minshull, Johns, 
276. 

(i:) Foley v. Parry, 2 M. & K , 138 ; 
Bernard v. Minshull, Johns, 276. 

{I) Taylor V. George, 2 V. & B,, .S78. 

(m) Ealesv. England, Pr. Ch , 200 ; 
Clowdsley v. Pelham. 1 Vem., 411. 

(«) Liddard v. Liddard, 28 Beav., 
266, Re Burley (1909), W, N., 253; 
but contra. Re Hamilton (1895), 2 Ch. 



(C. A.), 370. 

(o) Merediths. Heneage, 1 Sim. ,553. 

(p) Cary v. Cary, 2 Sch. & Lef., 
189 ; White v. Briggs, 2 Ph., 583. 

(g) Brovm v. Higgs, 4 Ves. , 708 ; 
affd., 18 Ves., 192. 

(r) Macey v. Shumer, 1 Atk., S89 ; 
Ray V. Adams, 3 M. and K, 237. 

(s) Shovelton v. Shovelton, 32 Beav. , 
143 ; Curnick v. Tucker, L. R , 17, Eq., 
320 ; Le Marchant v. ie Marchant, 
L. E.,' 18 Eq., 414, but contra Re 
Williams (1897), 2 Ch. (C. A.), 12. 

(t) Irvine v. Sullivan, L. R., 8 Eq., 
673. 

{u) Briggs v. Penny, 3 Mac. and G., 
54(5 : see however Stead v. Mellor, 5 Ch. 
D., 225. 

{v) Macnab v. Whitbread, 17 Beav., 
299. 

(to) Barnes v. Grant, 2 Jur. , N. S., 
1127. 

(x) Fordham v. Spreight, 23 W. R. 
(Eng.), 782. 

(y) Robinson v. Smith, 6 Madd., 
194 ; Clifton V. Lombe, Amb., 519 .but 
see Lechmere v. Lavie, 2 M. & K., 198. 

(z) Knight v. Knight, 3 Beav., 148, 
172. See 7f«»iora«ami v. Subbaroya, 
9 Mad., 325 ; Gokool Nath v. 7ss«r 
Lochan, 14 Cal., 222. 

(oa) See Merbao v. Perozbai, 5 Bom., 
268. 

(66) Lechmere v. Lavie, 2 M. & K., 
197 ; i?M«se!rv. Jackson, 10 Hare, 213 ; 
Palmer v. Simmonds, 2 Drew, 221. 

(cc) Malim v. Keighley, 2 Ves. J., 
335 ; Briggs v. Penny, 3 Mac. & G., 
540 ; £er«ard v. Minshull, Johns, 276 ; 
Mussoorie Bank v. Raynor, 4 All., 500 
P. C. 



Lee. III.] PRECATORY TRUSTS. 77 

For instance, a bequest of property to a certain person " hoping 
that he will continue it in the family," does not create a trust, as 
the beneficiary is not indicated with reasonable certainty. (a) So, 
for the same reason, a bequest to A requesting him to distribute it 
amongst such members of B's family as B shall think most deserv- 
ing, does not create a trust. (6) Again, a bequest to A desiring 
him to divide the bulk of it among B's children, does not create a 
trust, for the trust-property is not indicated with sufficient cer- 
tainty(c) ; and a bequest of a shop and stock-in-trade to A on 
condition that he pays the testator's debts and a legacy to B, is a 
condition and not a trust for the testator's creditors and B.(d) So 
also a direction to remember certain persons without specifying 
any sum or property(e), or to make ample provision for them(/ ), to 
give what shall remain at the legatee's dea.th.(g), or to divide and 
dispose of the savings(A), to consider certain persons(i), or to be 
kind to them ( J ), will not create a trust. 

Such words and expressions, however, as have been mentioned 
particularly w"here they indicate recommendation or en- ■„, . , 
treaty, are of a flexible character, and will not create a trust, recorn-° 
if that is inconsistent with other positive provisions in the mendation 
will.(fc) And words of expectation do not amount to a andentrea- 
recommendation, and do not create a trust. (Z) ^' 

If it is clear that the aiithor of the trust intended that the 
devisee should take absolutely, precatory words will not 
cut down the absolute gift, and create a trust ; they are Intention 
then regarded merely as the expression of a wish.(m) Thus solutely^''" 
where property is given to A for his own use, benefit, and 
disposal absolutely, the author of the trust nevertheless conjur- 
ing(w), desiring(o), or recommending(j3) him to make a particular 
disposition, no trust will be created, (g') 

(a) Harland v. Trigg, 1 Bro. C. C, (i) Knott t. Cottee, 2 Ph., 192 ; 

142. Young v. Martin, 2 Y. & C. C. C, 582 ; 

(6) Green v. Maraden, 1 Drew, 646 ; Hood v. Oglander, 34 Beav., 513 ; Scott 

White V. Briggs, 2 Ph., 583. v. Key, 35 Beav., 291 ; Eaton v. Watts, 

(c) Palmer V. Simmonds, 2 Drew,221. L. R., 2 Eq., 51. 

{d) Messenger v, Andrews, 4 Buss., {I) Lechrmre v. Lavie, 2 M. & K., 

478. 197. 

(e) Bardswell v. Bardswell, 9 Sim., {m) Meredithv. Heneage, I Sim., 542; 

319. Wood V. Cox, 2 My. & Cr., 684. See 

(/) Winch V. Brution, 14: Sim., S^9 ; also Comiskey v. Bowring-Hanburrf 

Fox V. Fox, 27 Beav., 301 ; see also Re (1905), A. C. (H. L.), 84. 

Moore, 55 L. J., N. S. Ch., 418 : 34, W. (n) Winch v. Bruton,U Sim., 379. 

E,., 343. (o) McCullochv. McCulloch, 11 W. 

(g) Lechmere v. Lavie, 2 M. & K., R. (Eng.), 504. 

197. (jj) Johnston v. Rowlands, 2 DeG. & 

(h) Cowman v. Harrison, 10 Hare, Sm., 356. 

234. (?) See also Webb v. Wools, 2 Sim., 

{{) Sale V. Moore, 1 Sim., 5.'!4 ; i^. 8., 2Q7 ; Abrahams. Alm.an,l^uss. , 

Hoy V. Master, 6 Sim., 568. 509 ; Reeves v. Baker, 18 Beav., 

(i) Buggins v. Yates, 9 Mod., 122. 373. 



78 



PRECATORY TRUSTS. 



[Lec. III. 



If a testator has, by his will, recommended or desired that a 
particular person shall be employed as an agent or manager of an 
estate, or the like, this will not in general impose a trust or oblii^a- 
tion upon the devisee of the estate, (a) 

There would seem to be an intermediate class of cases between 
liiterme- those in which the Court holds that a trust has been 

diate class created and those in which it holds that it has not been 
of cases. created. 

Thus there may be an absolute gift subject only to the 
performance of a particular trust, and the Court may look dehors 
the will to see what the trust is. In Irvine v. Sullivan (b) the 
testator bequeathed his property to A absolutely, trusting that she 
would carry out his wishes, but there was no further reference to 
them in the will. A had w'ritten down what the testator desired 
to give to various persons ; but the paper had not been seen by the 
testator. It was held that A took beneficially subject to the 
performance of the testator's wishes, (c) 

The tendency of modern decisions leans against the conversion 
of legatees into trustees, on the construction of precatory expres- 
sions, (c?) The doctrine of precatory trusts is not abolished, but 
the courts do not imply a trust unless the will shows a clear intention 
to impose an obligation on the legatee, (e) 

Occasionally the trusts of a will with reference to the mainten- 
ance of children are so ambiguous that it is doubtful 
whether the testator meant to create a trust, or merely to 
indicate the motive of the gift. Thus, if a legacy be 
given to a father that he may support himself and his children(/ ), 
or better to enable him to provide for his children(^), or to assist 
his children or the like(A), or if a legacy be given to A to maintain 
and bring up B(i), the gift is absolute without any trust or 
obligation being imposed on the legatee. So no trust is created 
when there is an absolute gift, having full confidence that the 
legatee will make sufficient and judicious provision for the 
children(y), or will husband the means left for the children. ()fc) 



Mainten 
ance. 



(a) Lawless v. Shaw, 5 C. & F., 129 ; 
Finden v. Stephens, 2 Ph., 142; Wil- 
liams V. Corbet, 8 Sim., 349 ; Foster v. 
Msley, 19 Ch. .t)., 518. 

(6) L. R., 8 Eq., 673. 

(c) See also Wood v. Cox, 2 M. & 
C, 684 ; Bernard v. Minshull, Johns, 
276 ; McCormick v. Orogan, L. R., 4 
H. L., 82. 

{d) Be Asams and the Kensington 
Vestry, 27 Ch. D. (C. A.), 394; Re 
Diggles, 39 Ch. D. (C. A.), 253; Re 
Downings'' Residuari/ Estate, 60 L. T. 
N. S., 140, 



(c) Ee Williams (1897), 2 Ch. (CA.), 
12 ; Mussoorie Bank v. Raynor, 7 App. 
Cas. , 321 ; Ccmiskey v. Bovjring-Han- 
bury, 1905, A, C. {H. L.), 84, reversing 
Re Hanbury (1904), 1 Ch. (C. A ), 415. 

( / ) Thorp V. Owen, 2 Hare, 607. 

((/) Brown v. Casaiiiojor, 4 Ves., 
498 ; Wetherell v. Wilson, 1 Ke*, 80. 

(h) Benson v. Whittam, 5 Sim., 22. 

(i) Biddies v. Biddies, 16 Sim , 1 ; 
Jones V. Oreatwood, 16 Beav. , 527; 
Wheeler v. Smith, 1 Giff., 300. 

{}) Fox V. Foi-, 27 Beav., 301. 

(k) Scott V. Key, 35 Beav., 291. 



lee. III.] 



TRUST FOR MAINTENANCE. 



79 



But a bequest of the income of propertj' that the legatee may 
use or dispose of it for the benefit of himself and the maintenance 
and education of his children, in general, creates a trust, not 
exclusively, however, for the children, but for the parent and 
■children. (a) The trust is imperative to this extent, that the 
parent must perform the obhgation : Provided he does this, he 
may retain any surplus beyond what is required for this purpose, 
ior himself, and is not bound to account for the application of 
the fund. (6) But faiUng in the performance of the trust he 
will not be allowed to receive the income. (c) Where there is a 
bequest of a fund to A for the maintenance of her children, and 
there are none, she will herself be entitled to the income. (c?) So 
also if they have since died.(e) The obligation to maintain the 
children, if there are any, will not be at an end when they attain 
twenty-one or marry. Whether it would, if they ceased to reside 
under the parent's roof, is doubtful. (/ ) The cases on this point are 
conflicting. (51) But an annuity given to children for their mainten- 
ance and education endures during their lives and does not cease 
with minority. (^) 

In Scott V. Key(i), under a bequest to the testator's widow 
to be at her sole and entire disposal for the benefit of herself and 
children, it was held, that the trust for maintenance did not cease 
absolutely on a daughter, an only child, attaining twenty-one and 
marrjdng ; but that on her becoming a widow and requiring 
maintenance, she would be entitled to it. 

A direction that A shall reside with and be maintained by B, 
will not be enforced as a trust in the event of A not choosing to 
reside with B, and although A may reside with B, the trust will 
terminate at the death of the latter. ( j ) Where an annuity was 
given to the testator's widow (in addition to another provision for 
her) as long as she and her son should live together, but if they ceased 
to live together it should cease, it was held that the annuity did not 
terminate upon the son's death in the widow's lifetime, (/fc) There 
are cases, however, somewhat varying in terms from .those just 



[a) Woods V. Woods, 1 My. & Cr,, 
401 ; Byne v. Blackburn, 26 Beav., 41. 
Carr v. Living, 28 Beav., 644 ; Berry v. 
Briant, 2 Dr. & Sm., 1 ; Bird v. May- 
bury, 33 Beav., 351. Re Booth (1894), 
2 Ch., 282 ; Re G. (1899), 1 Ch., 719. 

(6) Hora v. Hora, 33 Beav., 88. 

(e) Castle v. Castle, 1 DeG. & J., 
352 ; Re G. (1899), 1 Ch., 719. 

(d) Hammond v. Neame, 1 Swanst., 
35. 

(e) Bushnell v. Parsons, Prec. Ch., 
219. 

( f) Longmore v. Elcum, 2 Y. & C. C. 
■C., 363 ; Staniland v. Stanilajid, 34 



Beav., 536. 

(g) See also Bowden v. Laing, 14 
Sim., 113 ; Carr v. Living, 28 Beav., 
644 ; Thorp v. Owen, 2 Hare, 612. Re 
Booth (1894), 2 Ch., 282. 

{h) Wilkins v. Jodrell, 13 Ch. D., 
564 ; Williams v. Papworth (1900), 
A. C, 563. 

(j) 11 Jur., N. S., 819; Wilkins v. 
Jodrell, 13 Ch. D., 564. 

[j) Wilson V. Bell, L. R., 4 Ch,, 
581. 

(k) Sutdiffe v. Richardson, L. R., 13 
Eq., 606. 



80 BESOTTING TRUSTS. [Lec. III. 

noticed in which the Court has come to the conclusion that the 
trustee or parent was not intended to take any interest ; as if 
there is a gift to A to dispose of among his children(a), or the better 
to enable him to maintain his children until their shares should 
become payable. (6) 

Again, the terms of the bequest may show that the parent or 
trustee was intended to take jointly, or in common, with the other 
objects of the trust, as where a fund is given to a parent with her 
children for their joint maintenance. (c) And where the bequest 
was to the testator's wife for the use and benetit of herself and all 
his children by her, or by a former wife, it was held that "the widow 
and children took as joint tenants, (d) In some cases it has been 
held, that where there is a gift to a parent to be disposed of for the 
benefit of himself or herself and children, the parent takes an es- 
tate for life with a power of disposition in favour of the children. (e) 
But this cannot be relied upon as a general rule. Where a testator 
gave a house and all his estate to his widojv^ " to be at her disposal 
in any way she may think best for the benefit of herself and family," 
and the widow gave part to an illegitimate son of one of the 
testator's children, the gift was held valid. The Lords Justices 
without absolutely deciding the question, seem to have had little 
or no doubt that no trust at all was created by the testator's 
will.(/) 

Property Under the Indian Trusts Act, " where a person 

acquired acquires property with notice that another person has 

with notice entered into an existing contract affecting that property, 

°^ ^J^act"^ °^ which specific performance could be enforced, the former 

Indian Trusts must hold the property for the benefit of the latter to 

Act, s. 91. the extent necessary to give effect to the contract ". 

An implied trust will arise when a person agrees for valuable 
A eement consideration to settle certain property, whether moveable 
to^settle or immoveable((;), and the property may be followed into 

property. the hands of a third person. (A) 



(a) Blakeneyv. Blaheney, 6 Sim.., 52. (/) Lambe v. Eames, L. R., 6 Ch., 

(6) Wetherell v. Wilson, 1 Keen, 80 ; 597. See also Mackett v. Mackett, L. 

Brown v. Casamajor, 4 Ves., 498. R., 14 Eq,, 49. 

{c)WiUonv. Maddiaon,2Y. & C. C. {g) Kennedy y. Daly, ] Soh. & Lef., 

C, 372 ; Bibby v. Thompson, 32 Beav., 355 ; Wellesley v. Wellesley, 4 M. & Cr.^ 

646 ; Ee Booth (1894), 2 Ch., 282. 561 ; Lyster v. Burroughs, 1 Dr. and 

(d) Newill V. Newill, 7 W. N., 25; Wal., 149. See Namassivayam v. 
Bellaais' Trusts, L. R., 12 Eq., 218. Nellayappa, 18 Mad., 43 ; Laxmi Dosa 

(e) See Crockett v. Crockett, 2 Ph., v. Roop Laul, 30 Mad., 169 ; Tiruven- 
563 ; Gostabidie v. Costabidie, 6 Hare, kata v. Seshadri, 30 M. L. J., 659. 

410 ; Oully v. Cregoe, 24 Beav., 185 ; {h) Lewis v. Madocks, 8 Ves., 160 ; 

Jeffrey v, DeVitre, ib., 296 ; Shovelton Lord Churston v. Buller, 77 L. T. N. S.,, 

V. Shovelton, 32 Beav., U3 ; Armstrong 45; ReEeis (1904), 2 K. B. (C. A.), 

V. ilrmai/OBj, L. R., 7 Eq., 518. 769. 



Lee. III.] EESXTLTING TRUSTS. 81 

So if a person enters into a valid contract for the sale of pro- 
perty, he is from that tinae a trustee of the property for the 
purchaser, and must account for the rents and profits, and Vendor 
will be liable in damages if he neglects the property, for vendee, 
being a trustee he is bound to take care of the trust- 
estate, and commits a breach of trust if he does not do so. (a) 

The next class of trusts to consider are those created by 
operation of law. These again may be sub-divided into 
resulting trusts and constructive trusts. (6) I will first deal j^^su^^ting 
with the rules of English law as to resulting trusts, and 
then with benami transactions. When the instrument creating the 
trust, whether a deed or will, does not direct how the whole 
of the property, made subject to the trust, is to be disposed oAnterest'' 
of, the undisposed of interest results to the settlor or his 
heirs or representatives, (c) If a will fails to make an Act'^" 8^"*** 
effectual and complete disposition of the whole of the 
testator's real and personal estate, the undisposed of interest 
devolves iipon the person or persons on whom the law, in the 
absence of disposition, casts that species of property, (li) So on the 
same principle, where lands are devised upon particular purposes, 
as for payment of debts, or with a direction to pay to A for life, 
and no further trust is declared, all the unexhausted beneficial 
interest results to the heir. This doctrine is so well settled, that 
if the character of trustee be plainly and unequivocally affixed to 
the devisee, no question can be raised respecting its application ; 
but the difficulty in these cases generally is to determine whether 
it is intended that the interest in the land beyond the purpose to 
which it is devoted shall belong to the devisees in a fiduciary 
character, or for their own benefit, (e) 



(a) Acland v. Gaisford, 2 Madd., 32 ; beneficial interest is a resulting trust in 

Wilson V. Clapham, 1 J. and W., 38 ; favour of the testator's heir ; or, 2. 

Fergiison v. Tadman, 1 Sim., 530 ; Constructive trusts, which the Court 

Foster v. Deacon, 3 Madd., 394 ; Clarke elicits by a construction put upon 

V. Ramuz (1891), 2 Q. B. (C. A.), 456; certain ac/« of parties, as when a tenant 

Raffety v, Schafield (1897), 1 Ch., for life of leaseholds renews the lease on 

937. his own account, in which case the law 

(6) " An Implied trust is one declared gives the benefit of the renewed lease to 

by a party not directly, but only those who were interested in the old 

by implication ; as where a testator lease." — Lewin, 12th Ed., 124 note, 
devises an estate to A and his heirs, (c) Culpepper v. Aston, 2 Ch. Cas., 

not doubting that he will thereout pay 116 ; Cook v. Gwavas, cited in Roper v. 

an annuity of 202. per annum to B, for Raddiffe, 9 Mod., 187 ; Lloyd v. Spillett, 

his life, in which case ^4 is a trustee for 2^tk., 150 ; Cottingion v. Fletcher, ib., 

B to the extent of the annuity. Trusts 156 ; Northen v. Carnegie, 4 Drew. , 

by operation of law are such as are not 587 ; Mapp v. Elcock, 3 H. L. C, 

declared by a party at all, either 492 ; Re Croome, 59 L. T. N. S., 502 : 

directly or indirectly, but result from 61 L. T. N. S., 814. Also Williams 

the effect of a rule of equity, and are v. Arkle, 7 H. L. C, 606. 
either — 1. Resulting trusts, as where (d) Mathuradas v. Vandraviandas, 

an estate is devised to A and his heirs, 31 Bom., 222 ; Dwarkadas v. Dwarka- 

npon trust to sell and pay the testator's das, 40 Bom., 341. 
debts, in which case the surplus of the (e) 1 Jarm., 529, 3rd Ed. 



A, LT 



6 



82 RESULTING TRUSTS. [LCC. HI. 

Where the whole legal interest of a grantor is given for the 
purpose of satisfying trusts expressed, and those trusts do not in 
their execution exhaust the whole, so much of the beneficial interest 
as is not exhausted results to the grantor or to his heir or legal 
personal representatives. But where the whole legal interest is 
given for a particular purpose, with an intention to give to the 
grantee of the legal estate the beneficial interest, if the whole is not 
exhausted by that particular purpose, the surplus goes to the 
grantee, and there is no resulting trust. Thus, a devise to A and 
his heirs charged with the testator's debts is a beneficial devise, 
subject to a particular purpose, and there will be no resulting 
trust ; but if the devise is upon trust to pay debts, that being a 
devise for a particular purpose only, a trust will result for the 
heir, (a) 

In Lallubhai Bapubhai v. Mankuvarbaiip), Westropp, C. J., 
said : " Where there is a devise upon trusts which do not exhaust 
the property devised, the mere conferring of a legacy, or other 
benefit, upon the heir does not prevent there being a resulting trust 
of the residue for him, unless there be other circumstances sufii- 
ciently strong to turn the scale in favour of the devisee. " On the 
same principle the mere gift, by a testator, of an annuity to his 
wife has been held not to be sufficient without other circumstances 
demonstrative of his intention that she should not have both it 
and dower, to induce the Courts in England to put her to her 
election between the annuity and dower. Even where there is an 
expressed intention to exclude the next-of-kin from the residue of 
personalty, or the heir from the residue of realty, there must be a 
distinct devise away from them, otherwise there will be a resulting 
trust in their favour." 

In order to exclude the heir, the intention of the grantor to 

exclude them must be apparent ; mere conjecture(c) or 

heirs" "^ the fact that legacies have been given ((?) will not be 

sufficient, (e) The trust results, not on the ground of 

intention, but because the ancestor has declared no inten- 

tion.(/) 

Even where there is an expressed intention to exclude the 
next-of-kin or heir, there must be a distinct devise away from 
them, otherwise there will be a resulting trust in their favour, (gr) 

(a) King v. Denison, 1 V. & E., 272, (e) King v. Denison, 1 V. & B., 274 ; 

per Lord Eldon : and see Wood r. Cox, Amphlett v. Parke, 2 R. & M., 230. 

2 M. & C, 684 ; Rogers v. Sogers, 3 P. ( / ) Tregonwell v. Sydenham., 3 Dow., 

Wma., 193. 211 ; Lloyd v. Spillett, 2 Atk., 151 ; 

(6) 2 B. H. C. R., 388. Habergham v. Vincent, 2 Ves. J., 225. 

(c) Halliday V. Hudson, S Vea., 211 ; (g) Fitch v. Weber, 6 Hare, 145; 
Phillips V. Phillips, 1 M. & K., 661. Johnson v. Johnson, 4 Beav., 318 ; 

(d) Salter v. Cavanagh, 1 Dr. and Lallubhai Bapubhai v. Manlitvarbai, 
Wal., 668. 2 B. H. C. R., 388. 



Lee. III.j RESULTING TRUSTS. 83 

Parol evidence is admissible to rebut the presumption „ 

of law in the case of an instrument made inter vivos, and dence to 

to show the settlor's intention to give the surplus interest rebut pre- 

beneficially.(a) sumption. 

Under the Indian Trust Act, " Where the owner of property 
transfers it to another for an illegal purpose and such 
purpose is not carried into execution, or the transferor is purpose, 
not as guilty as the transferee, or the efEect of permitting. Indian Trusts 
the transferee to retain the property might be to defeat ^'^'' ^^- ^4— 
the provisions of any law, the transferee must hold the 
property for the benefit of the transferor. (&) Where a testator 
bequeaths certain property upon trust and the purpose of the 
trust appears on the face of the will to be unlawful, or during 
the testator's lifetime the legatee agrees with him to apply the 
property for an unlawful purpose, the legatee must hold the 
property for the benefit of the testator's legal representa- 
tive." 

If property is assigned for an illegal purpose, which is not 
<;arried into effect, and nothing is done imder it, the mere, 
intention to effect an illegal object when the assignment was 
■executed, does not deprive the assignor of his right to recover 
the property from the assignee who has given no consideration 
for it.(c) 

Where estates are devised to executors upon trust, to sell and 
to invest part of the proceeds of the sale for a particular 
purpose, but no trust is declared of the sum so reserved ™^ 
after the purpose is satisfied, there will be a resulting trust for the 
heiv.{d) 

Under a devise of all the residue of the testator's estate and 
■effects whatsoever, and wheresoever, of what nature or kind soever, 
to trustees upon trusts applicable only to personal property, the 
real estate will pass with a resulting trust for the heir.(e) But if 
the trusts may be applicable to real estate, then the real estate 
will pass.(/) 

(a) Fowhes v. Pascoe, L. R., 10 Ch., Cal., 967. Bajagopaia v. Sundaram, 

343. As to admission of parol evidence 33 M. L. J., 696. 

in case of wills, see Lewin, 12th Ed., (d) Stonehouse v. Evelyn, 3 P. Wms., 

«3, 169. 252; Watson v. Hayes, 5 M. & C, 

(6) Munisami v. Subbarayar, 31 125 ; Page v. Leapingwell, 18 Ves., 

Mad., 97. 463 ; Mariott v. Turner, 20 Beav., 557. 

(c) Syrms v. Hughes, L. R., 9 Eq., (e) Dunnage v. White, 1 Jac. and 

475 ; Manning v. Oill, L. R., 13 Eq., W., 583 ; Lhyd v. Lloyd, L. R., 7 Eq., 

4S5 ; Haighv. Kaye,'L.Ji.,'J Gh., 469; 458; Longley v. Longley, L. R., 13 

Dawson v. Small, L. R., 18 Eq., 114 ; Eq., 133. 

see Father perumal y. Muniandy, 35 (/) D' Almaine v. Moseley, 1 Drew., 

€al., 551 P. C. ; Hirji v. Oordhan, 32 629 ; Coard v. Holdemess, 20 Beav., 

T. C, 530 ; Jadu Naih v. Rup Lai, 33 147. 



84 



RESULTING TRUSTS. 



[Lec. III. 



Trust de- 
clared of 
part only 
of estate. 



If the trusts declared are so vague that they cannot be 
executed(a), or if they lapae(6), or are void because of unlaw- 
fulness(c), or if property is devised on trusts to be thereafter 
declared, and no declaration is made(d), a trust will result. 

So also a trust will result when the instrument creating the 

Trusts vague t^ust shows that it was not intended that the grantee 

No trust should take beneficially, as where the conveyance, devise 

declared. or bequest is to A " upon trust," and no trust ia 

declared, (e) 

If a trust is declared of a part only of an estate, whether by 
conveyance, inter vivos, or by will, the undisposed of 
interest results to the grantee or testator, or his heirs or 
representatives.{/) According to English law, the undis- 
posed-of residue, in the case of personalty, vests in the 
executors beneficially. But that rule does not apply to Hindus. (^) 

A trust will result where stock or money is transferred to 
another, unless it can be inferred from the surrounding 
circumstances that a gift was intended(fe) ; and where 
the transfer is into the joint names of the grantor 
and grantee, the grantee will have a beneficial interest 
for life.(i) 

No trust will result where a person invests money in the 
Purchase names of the trustees of his marriage-settlement, the pre- 

in name of sumption being in such cases that he intended to benefit 
trustees. the persons interested under the settlement, (j) 

Though cestuis que trustent may claim the whole of an estate 
which is wholly purchased out of trust-moneys, they can, if the 
estate be only partially purchased with trust-money, claim only a 



Transfer of 
stock or 
money into 
name of 
another. 



(a) Stubbs V. Sargon, 2 Keen., 255 ; 
3 M. & C, 507 ; Williams v. Kershaw, 
5C.&F., Ill ; Fitzeraldv. Nodd {1886), 
W. N., 97 ; Ee Sidney (1907), W. N. 
219 ; Be Davidson (1909), 1 Ch. (C. A.), 
567. 

(6) Achroyd v. Smithson, 1 Bro. 
C. C, 503 ; Williams v. Coade, 10 Ves., 
500. 

(«) Qibbs V. Rum^ey, 2 V. & B., 234 ; 
Page v. Leapingwell, 18 Ves., 463 ; 
Tngonwell v. Sydenham, 3 Dow., 194. 

{d) Fitch V. Weber, 6 Hare, 145 ; 
Barrs v Fewkes, 2 H. & M., 60 ; Bid- 
dulph T. Williams, L. R., 1 C. D., 203. 

(«) Dawson v. Glarhe, 18 Ves., 254 ; 
Penfoldv. Bouch, 4 Hare, 271; Attorney- 
Oeneral v. Dean and Canons of Windsor, 
24 Beav., 679 ; 8 H. L. C , 369 : Aston 
V. Wood, L. R., 6 Eq., 410 ; Barrs v. 



Fewkes, 2 H. & M., 60 ; Ee Sinclair 
(1903), W^ N., 113; Kirby-Smith v. 
Parnell (1903), 1 Ch., 483. 

(/) Northen v. Carnegie, 4 Drew., 
587 ; Nash v. Smith, 17 Ves, , 29 ; Mapp 
V. Elcock, 2 PhiU., 793 ; 3 H, L. C, 
492 ; Bird v. Harris, L. R., 9 Eq., 204 ; 
Williams v. Arkle, L. R., 7 H. L., 606 ; 
Ee Groome, 59 L. T. N. S. ; 61 L. T. N. 
S., 814. 

(g) Lallubhai Bapubhai v. Mankia- 
varbai, 2 B. H. C. R., 388. 

{h) Custance v. Cunningham, 13 
Beav., 363 ; Fowkes v. Pascoe, L. R., 
10 Ch., 340 ; Batstone v. Salter, L. R., 
10 Ch., 431. 

(») Fowkes V. Pascoe, L. R., 10 Ch., 
343. 

( j ) Ee Curteis'a Trust,' L. R., 14 
Eq., 217. 



Lee. III.] PURCHASE in name of steangee. 85 

charge for the amount of the trust-moneys employed in the 
trust, (a) 

Where property is bought by one person in the name of a 
stranger, to whom the conveyance is made, there wUl be 
a resulting trust for the person who paid the purchase- in^name^of 
money. " The clear result of all the cases," said Eyre, stranger., 
C. B.(6), " without a single exception, is, that the trust of a 
legal estate, whether freehold, copyhold, or leasehold ; whether 
taken in the names of the purchasers or others jointly, or in the 
names of others without that of the purchaser ; whether in one 
name or several ; whether jointly or successive, results to the man 
who advanced the purchase-money. This is a general proposition 
supported by all the cases, and there is nothing to contradict it ; 
and it goes on a strict analogy to the rule of the common law, that 
where a feoffment is made without consideration, the use results 
to the feoffor."(c) 

The person who advances the money must do so in the character 
of purchaser. ((Z) 

No resulting trust will be created by the mere expres- Expres- 
sion]of a wish on the part of the grantor, that the purchase- sion of 
money may be applied in a certain way.(e) ^'sh. 

The rights of a purchaser may be barred by negli- ^ , 
gence or delay.(/) 

The rule that a trust results for the person who pays the 
purchase-money applies to the case of a joint purchase in 
the name of one. In Crop v. Norton{g), Lord Hardwicke J^"^oint''ur^ 
seemed to think that the application of the rule was con- chase, 
fined to an advance by one individual. In Wray v. Steele{h), 
however, Sir T. Plumer decided that a resulting trust arose upon 
a joint advance, the purchase being taken'in the name of one. 

(o) Lane v. Dighton, Amb., 409 ; (e) Wheeler v. Smith, 1 Giff., 300. 

Byal V. Eyal, Amb., 411 ; Scales v. (/) Delane v. Delane, 7 Bro. P. C, 

Baker, 28 Beav., 91 ; Hoppery. Gonyers, 279 ; Groves v. Groves, 3 Y. & J., 172 ; 

L. R., 2 Eq., 549 ; Nogender Chunder Glegg v. Edmonson, 8 D. M. G., 787 ; 

Ghose V. Greender Chunder Ghose, Boul., Willmott v. Barber, 15 Ch. B., 96 ; 

389. Ananda Chandra v. Parbatinath, 4 C. L. 

(6) Dyer v. Dyer, 2 Cox, 93 ; Lynch J., 198 ; see also Uda Begum v. Imam- 

V. Clarkin (1900), 1 I. R. (0. A.), 178. uddin, 1 AH., 82 ; ThakoreFaUhsinghv. 

(c) As to conveyances taken jointly, Bamanji, 27 Bom., 515 ; Athikarath v. 
see Ez-parte Houghton, 17 Ves., 253 ; Eralhanikath, 21 Mad., 42 ; Peddamu- 
Eider v. Kidder, 10 Ves., 367. And as thulaty v. Timma Reddy, 2 M. H. C. R., 
to several successive, see Howe v. Howe, 270 ; Mahomed HafizuUah v. Chithru- 
1 Vem., 415 ; Withers v. Withers, Amb., khan, 36 I. C, 1001 ; Appan Charan v. 
151; Smith v. Baker, 1 Atk., 386; KyaVrSe Ma, il I. C, 122. 
Prankard v. Prankard, 1 S. & S., 1. (?) 2 Atk., 74 ; 9 Mod., 233 ; Bam., 

(d) Bartlett v. Pickersgill, 1 Eden, 184. 

516 ; Crop v. Norton, 9 Mod., 235 ; (h) 2 V. & B., 388. 

Aveling v. Knipe, 19 Ves.; 441. 



86 



PAROL EVIDENCE. 



[Lec. III. 



Purchase 
in fictitious 



" Lord Hardwicke," said his Honour, " could not have used the 
language attributed to him. What is there applicable to an advance 
by a single individual, that is not equally applicable to a joint 
advance under similar circumstances ? "(a) 

The foregoing doctrines apply as well to personal as to real 
To personal estate(&), even though when the property consists of shares, 
as well as in a company, the rules of the company provide that there 
real estate. shall be no benefit of survivorship. (c) 

Where money has been invested in the purchase of stock in a 
fictitious name, for the purpose of defrauding creditors, the 
Court will order the fictitious name to be erased and the 
stock to be transferred to the person who paid the purchase- 
money. (eZ) Where an intestate had - executed transfers 
of railway shares and stock to a fictitious person, the Court, in a 
suit by his administrator, declared that the intestate used the 
fictitious name as another designation of himself, and that the 
plaintiff, as administrator, was entitled to a transfer of the sharea 
and stock in question, and to receive the dividends thereof, (e) 

Parol evidence is admissible on behalf of the person paying 
the purchase-money to show that it belonged to him. 
In Sir John Pechy's Case(f), SirE. Clarke, M. R., laid it 
down, that if A sold an estate to C, and the consideration 
was expressed to be paid by B, and the conveyance 
made to B, the Court would allow parol evidence to prove 
that the money was paid by C.{g} But such parol proofs 
must be very clear. (^) 

Parol evidence is admissible on behalf of the person to whom 
the conveyance is made, to rebut the presumption of a 
resulting trust for the person paying the purchase-money. 
In Beechsr y. Major{i), A purchased and transferred 
£1,000 stock in the name of her niece, and wrote her a 
letter, saying that she had done so, and that she intended it 
for the niece's benefit ; and in the letter A enclosed a bank- 
power, which she stated was to enable her to receive the 



Parol evi- 
dence ad- 
missible on 
part of per- 
son paying 
purchase- 
money. 



Parol evi- 
dence on 
behalf of 
person to 
whom con- 
veyance 
made. 



(a) As to contribution, see Lewin, 
12th Ed., 185. 

(b) Ebrand v. Dancer, 2 Ch. Ca., 26 ; 
Lloyd V. Bead, 1 P. Wms., 607 ; Mor- 
timer V. Davies, 10 Ves., 363 ; Rider v. 
Kidder, 10 Ves., 360; Sidmouth v. 
Sidmoufh, 2 Beav., 447 ; Soar v. Foster, 
4 K. & J., 152 ; Beecher v. Major, 2 Dr. 
and Sm., 431 ; Batstone v. Salter, L. R., 
19 Eq., 250 ; affd. L. R., 10 Ch., 431 ; 
Re Scottish Equitable Life Assurance 
Society (1902), 1 Cli., 282. 

(c) Oarrick v. Taylor, 29 Beav., 79 : 
affd.. 4 DeG. F. & J.. 159. 



(d) Green v. Banh of England, 3 Y. & 
C. Exoh., 722. 

(e) Arthur v. Midland Railway Com- 
pany, 3 K. & J., 204. 

Cf) Rolls, E. T., 1759 M. ; 6 Sued. 
V. & P. 

{g) See also Ryal v.Ryal, 1 Atk., 59 f 
Amb., 413 ; Willis v. Willis, 2 Atk., 
71 ; Bartlett v. Pichersgill, 1 Eden., 516 j 
Lane v. Dighton, Amb., 409 ; Groves v. 
Groves, 3 Y. & J., 163. 

(K) Gascoigne v. Thwing, 1 Vcr., 366 ; 
Willis v. Willis, 2 Atk., 71. 

(i) 2 Dr. &Sm.,431. 



Lee. III.] PAROL EVIDENCE. 87 

dividends for her life, which power she requested the niece to 
execute and return to her, and also to destroy the letter, both of 
which the niece accordingly did. It afterwards turned out that 
the bank-power authorized A to sell out stock as well as receive 
the dividends. It appeared that A had always been very kind to 
the niece, and by her will, made before the transfer, had given 
her an annuity of £30. It was held that parol evidence of the 
contents of the letter was admissible to rebut the presumption 
that the stock still belonged to A. (a) Parol evidence 
is admissible for the purpose of rebutting the presump- pr°esumption 
tion of a resulting trust as to a part as well as to the as to part of 
whole of the property. (&) t^e property. 

Parol evidence is equally admissible to show that, where land 
has been paid for by one person, the purchase was made on 
behalf of another. Although the seventh section of the 1^^*^^* °^ 
Statute of Frauds requiring declarations of trust to be in 
writing may be considered to be in force in any Presidency- 
town(c), the statute " was not made to cover fraud " and does not 
prevent the proof of a fraud. " The principle applies not only 
where the trustee, whose conscience is afEected, is the defendant, 
but also as against volunteers or creditors claiming under 
him."(d!) So where there was an assignment of an agreement 
for a lease apparently absolute, but with an arrangement 
that a part of the premises was to be held in trust for the assignor, 
the trust was allowed to be proved by parol evidence, (e) 

In some cases it has been held, that where a conveyance is 
made to a stranger without any valuable consideration _ 
being expressed, then a resulting trust arises for the gran- to stra^^r^ 
tor.(/) In Young v. Peachy (g) Lord Hard wi eke said : without 
" If a trust by implication was to arise in the present case, considera- 
it would be to contradict the Statute of Frauds ; for it 
might be said in every case where a voluntary conveyance is made. 



(a) See also Groves v. Groves, 3 Y. & (1894), 2 Ch., 183 ; Rouchefoucauld v. 

J., 163 ; Standing v.Bouring, 21 Cii.D., Boustead (1897), 1 Ch., 196. A 

341 ; 31 Ch. D. (C. A.), 282. contrary view was expressed in the 

(5) Bellasis v. Compton, 2 Vern., last edition of this work on the autho- 

294 ; BenJbow v. Townsend,- 1 M. & K., rity of Bartlett v. Pickersgill, 1 Eden., 

506 ; Deacon v. Colquhoun, 2 Drew., 21 ; 516, but this case has since been over- 

Garrick v. Taylor, 29 Beav., 79 ; affd., ruled by Rouchefoucauld v. Boustead, 

4 DeG. F. & J., 163. aforesaid. 

(c) As to the applicability of the ( / ) Duke of Norfolk v. Brown, Prec. 
Statute of Frauds in India, see p. 13 Ch., 80 ; Warman v. Seaman, Freem., 
supra, note (l). 308 ; Sculthorp v. Burgess, 1 Ves. J., 93 ; 

(d) Lincoln v. Wright, 4 DeG. & J., Davies v. Oily (No. 2), 35 Beav., 208. 
22, per Turner L. J. See Jadu Natk v. Rup Lai, 33 Cal., 

(e) Booth V. Turle, L. R., 16 Eq., 967. 

1 82 ; Re Duke of Marlborough, {g) 2 Atk., 256, 



88 PURCHASE IN NAME OF WIFl! OB CHILD. [LCC. III. 

that a trust shall arise by implication ; but that is by no means 
the rule of the Court, (a) Trusts by implication, or operation of 
law, arise in such cases, where one person pays the purchase-money, 
and the conveyance is taken in the name of another, or in some 
other cases of that kind ; but the rule is by no means so large as to 
extend to every voluntary conveyance. "(6) 

Where a son conveyed an estate to his father nominally as 
purchaser, but really as a trustee, and in order that the father, 
who was in better credit than the son, might raise money on it by 
way of mortgage for the use of the son, and the father died shortly 
afterwards, and before any money was raised, having by a will 
subsequent to the conveyance made a general devise of all his real 
estates, it was held that the case was within the Statute, and that 
parol evidence was not admissible to prove the trust ; but that the 
son had a lien on the estate as vendor for the apparent consideration, 
no part of which was paid.(c) In Heigh v. Kayeb{d), however, 
the rule that the statute cannot be used to cover a fraud was applied 
under similar circumstances and parol evidence was admitted, so 
that the view in Leman v. Whitley is now considered as over- 
ruled, fe) 

in the^name ^° resulting trust arises upon a purchase in the 

of a wife or name of a wife alone. (/) Nor upon a joint purchase in 

child ; no the names of husband and wif e(g!), nor upon a purchase 

resumng -^^ ^^^ ^^^^ ^^ ^ child. (A) 

If a mortgage is made in the joint names of a husband and 
wife, this will be considered as being in the nature of a joint pur- 
chase, and the wife will, if the husband dies, be entitled to the 
mortgage-money by survivorship, (i) 

A purchase in the name of the purchaser and of a woman with 

whom he has gone through the ceremony of marriage, but 

wife. ^ ^^o could never become his lawful wife, does not come 

within the rule, and therefore such a purchase will not 



(a) See Fordyce v. Willis, 3 Bro. C. Back v. Andrews, 2 Vern., 120 ; Christ's 
C, 577. Hospital v. Budgin, 2 Vern., 683 ; Rider 

(b) And see 1 Sand. Uses, 5th Ed., v. Kidder, 10 Ves., 360 ; Gosling v. 
365 ; Wms. R. P., 10th Ed., 159 ; Gosling, 3 Drew., 335 ; Lloyd v. Pughe, 
Lloyd V. SpilUtt, 2 Atk., 150. See L. R., 8 Ch., 88. 

Indian Trusts Act, ss. 81, 82. P. 95 (g) Drew v. Martin, 2 H. & M., 

post. 130. 

(c) Leman v. Whitley, i Russ., 423. (h) Dyer v. Dyer, 2 Cox, 92 ; Finch, 
id) L. R., 7 Ch., 469. v. Finch, 15 Ves., 50 ; Murless v. 
(e) See Se Duke of Marlborough Franklin, 1 Wwanst., 13 ; Grey v. 

(1894), 2 Ch,, 133 ; Rochefaucauld v. Grey, 2 Sawnst., 597 ; Finch, 340. 

Boustead (1897), 1 Ch., 196. (i) Christ's Hospital v. Budgin, 2 

( / ) Kingdom v. Bridges, 2 Vern., 67 ; Vern., 683. 



Lee. III.] PURCHASE BY MOTHER, 89 

xaise a presumption that it was intended as an advancement or 
provision for her. (a) 

The presumption of advancement may arise in the case of a 
purchase by a person who has placed himself in loco parentis 
to the person in whose name the purchase is made. Thus locoVarm- 
the presumption has been held to apply in the case of an tis. 
illegitimate son. (6) 

But the presumption of advancement will not arise in the 
case of a purchase in the name of an illegitiinate grand-child, 
■although the grandfather has placed himself in loco parentis to 
the child, (c) 

In the case of De Visrm{d), it was said that a mother does 
not stand in such a relationship to a child as to raise 
a presumption of benefit for the child. In Sayre v. bv"moTher. 
JIughes{e), a mother, after making her will in favour 
of her two daughters, transferred stock, which had stood in 
her own name, into the names of herself and one of the daughters, 
-and died. It was held, that there was a presumption of intended 
benefit to the daughter which was unrebutted, and that the 
^tock belonged absolutely to her. Re De Visme(f) was cited 
as an authority for the proposition, that there could be no 
presumption of advancement as between a mother and child ; 
but Stuart, V. C, pointed out that the word ' father ' does 
not occur in Lord Chief Baron Eyre's judgment in Dyer v. 
Dyer(g), and said that it was not easy to imderstand why a 
mother should be presumed to be less disposed to benefit her chi|d 
in a transaction of this kind than a father. Where stock was 
transferred by a mother into the names of herself, her daughtei:, 
and the daughter's husband, and the dividends on the stock were 
received by the son-in-law and paid over to the transferror during 
her life, and the mother died leaving the son-in-law only surviving, 
it was held, that there was no resulting trust, and that the son-in- 
law was entitled to the stock, the Court being of opinion that the 
evidence showed that the mother intended to create a beneficial 
interest in each of the three persons into whose name the stock 
was transferred. (A) The rule does not, however, apply to a step- 
mother, (t) 

(o) Soar V. Foster, 4 K. & J., 152. (d) 2 DeG. J. & S., 17. 

(6) Beckfordv. Beckford, Lofft,, 490 ; (e) L. R, 5 Eq., 377 ; see also Hep- 

Kilpin V. Kilpin, 1 M. & K., 520 ; Soar worth v. Hepworth, L. E.., 11 Eq., 10. 

V. Foster, 4 K. & J., 152; Tucker v. (/) 2 DeG. J. & S., 17. 

Burrow, 2 H. & M., 515. ig) 2 Cox, 92. 

(c) Tucker v. Burrow, 2 H. & M., (h) Batstone v. Salter, L. R, 19 Eq., 

515; Forrest V.Forrest, 11 Jur., N. S., 250; a£Ed., L. R., 10 Ch., 431. And 

317. Be Scottish Equitable Assurance see Fowkes v. Pascoe, L. R., 10 Ch., 

,9oa% (1902), ICh., 282. See however 343. 

Potnys V. Mansfield, 3 My. & Cr., 359, (i) Todd v. Moorhouse, L. R., 19 

as to double portions. Eq., 69. 



90 FIDUCIARY RELATIONSHIP. [LeC. III. 

Where a fiduciary relationsliip, such as that of solicitor and 

client, subsists between a parent and child, and the parent's 

relati^on'^^ money is advantied by the child in her own name, the 

ship. ordinary presumption in favour of the transaction being 

a gift, is excluded, and the onus is thrown upon the child 

of proving that a gift was in fact intended, (a) 

Purchases Purchases in the name of a wife or child by way of 

against o"*' or advancement, are, it appears, within the 13 Eliz.^ 

creditors. c. 5, and may be avoided as against creditors. (6) 

The doctrine of advancement has no application to the natives 
of India, Hindu or Mahomedan.(c) 

The rules of English Courts of Equity as to resulting trusts- 
Rules ap- ^Pply ^■Iso to personal estate, and therefore, where a 
ply to per- husband transfers stock into the names of himself and his- 
sonal wife, no resulting trust will arise for the husband, but the 
wife will be entitled to the whole of the fund by survivor- 
ship [d) ; so also in the case of a transfer of stock into th& 
names of a parent and child, the stock will belong to the child 
surviving, (e) 

The mere circumstance that the name of a wife or .child is^ 

inserted on the occasion of a purchase of stock is not sufi&cient to 

rebut the presumption of a resulting trust in favour of the purchaser. 

Surrounding '^ *^® surrounding circumstances lead to the conclusion that 

circum- a trust was intended. Although a purchase in the name of 

stances to a wife or a child, if altogether unexplained, will be deemed 

dered"^'" ^ 8^^*' ^^^ *^® surrounding circumstances may be taken inta 

consideration so as to say that it is a trust, and not a gift. 

Thus in Marshall v. Crutwell(f), the husband of the plaintiff, being 

in failing health, transferred his banking account from his own 

name into the joint names of himself and his wife, and directed the- 

bankers to honour cheques drawn either by himself or his wife,. 

and he afterwards paid in considerable sums to their account. 

All cheques were afterwards drawn by the plaintiff at the direction 

of her husband, and the proceeds were applied in payment of 

household and other expenses. The husband never explained t& 

the plaintiff what his intention was in transferring the account, but 



(o) Garrett v. Wilkinson, 2 DeG. & persaud Gosain, 6 M. I. A., 53. See- 

Sm. , 244 ; see also Hepworth v. Hep- p. 95 post, 
worth, L. E., 11 Eq., 14. (d) Dummer v. Pitcher, 2 M. & K., 

(6) Glaister v. Hewer, 8 Ves., 195; 262; Low v. Carter, 1 Beav., 426,- 

Townsend T. Westacott, 2 Beav., 340; Vance v. Vance, ib., 605; Poole v. 

4 Beav., 58 ; Christy v. Courlenay, 13 Odling, 31 L. J., Ch., 439. 
Beav., 96; Barrack v. M'Culloch, 3 K. (e) Sayre v. Hughes, L. E , 5 Eq.,. 

& J., 110 ; Drew v. Martin, 2 H. & M., 376 ; Ke De Visme, 2 DeG. J. & S., 17. 
130. (/) L. E., 20 Eq., 329; and se& 

(c) Gopeekristo Gosain v. Gunga- fowics v. Pascoe, L. E., 10 Ch., 343. 



Lee. III. J JOINT TENANCY WHEN CREATED. 91 

he was stated by the bank manager to have remarked at the time 
of the transfer that the balance of the account would belong to the- 
survivor of himself and his wife. After the death of her husband 
(which took place a few months after the transfer), the plaintifE 
claimed to be entitled to the balance. It was held that the transfer 
of the account was not intended to be a provi,sion for the plaintiff,, 
but merely a convenient mode of managing her husband's affairs, 
and consequently that she was not entitled. Jessel, M. E., said :; 
" In all the cases in which a gift to the wife has been held to have 
been intended, the husband has retained the dominion over the 
fund in this sense, that the wife during the lifetime of the husband 
has had no power independently of him, and the husband has 
retained the power of revoking the gift. In transferring a sum of 
stock, there is no obvious motive why a man should put a sum of 
stock into the name of himself and his wife. She cannot receive 
the dividends, he can and must, and it is difficult to see any motive 
of convenience or otherwise which should induce a man to buy a 
sum of stock or transfer a sum of stock (if there is any difference 
between the two) in or into the names of himself and his wife, 
except the motive of benefiting her in case she survives. But 
here we have the actual fact, that the man was in such a state of 
health that he could not draw cheques, and the wife drew them. 
Looking at the fact that subsequent sums are paid in from time to 
time, and taking into view all the circumstances (as I understand 
I am bound to do) as a juryman, I think that the circumstances 
show that this was a mere arrangement for convenience, and that 
it was not intended to be a provision for the wife in the event 
which might happen, that at the husband's death there might be 
a fund standing to the credit of the banking account." 

Where a purchase, either of moveable or immoveable property, 
is made in the name of a wife or child, and the purchaser 
dies before the whole of the purchase-money is paid, the Purchase- 
purchase will enure for the benefit of the wife or child, paid, 
and the unpaid purchase-money is payable out of the 
purchaser's personal estate, (a) 

A purchase in the joint names of a father and son creates a 
joint tenancy. (6) In one case, where the father had no 
other estate to which a judgment- creditor could resort, ancvwhek 
the creditor was relieved in equity against the survi- created, 
vorship at law.(c) 



(a) Redington v. Redington, 3 Ridg., 1 Ch. Caa., 27 ; Back v. Andrew 2 Vein., 

P. C, 177; Vance V. Vance, 1 Beav., 120; Grey v. Grey, 2 Swanst., 599; 

605 ; Drew v. Martin, 2 H. & M., 130 ; Dummer v. Pitcher, 2 M. & K., 272. 
Skidmore v. Bradford, L. R., 8 Eq , (c) Stileman v. Ashdown, 2 Atk., 

134. 477 ; see Pole v. Pole, 1 Ves., 76. 

(6) Scroope v. Scroope, Freem., 171 ; 



92 



POSSESSION BY FATHER. 



[Lec. III. 



Purchase 
in the name 
of a child 
and a 
stranger. 



Evidence 
to rebut 
presump- 
tion of ad- 
vancement. 



If a purchase is made by a parent in the nanae of a 
child and of a stranger, whether of real or personal estate, 
it will be considered as an advancement ; the stranger will 
be treated as a trustee for the child, and there will not be 
any resulting trust to the father, (a) 

In certain cases where a purchase is made in the name of 
child, the presumption of advancement may be rebutted. (6) 
The antecedent and contemporaneous acts and declarations 
of the parent are admissible in evidence to rebut the pre- 
sumption of advancement, but his subsequent acts and 
declarations are inadmissible for that purpose, (c) 

In Demy v. Devoy(d), the presumption that the transfer by a 
father of stock into the joint names of himself, his wife, and child, 
was intended to be an advancement, was allowed to be rebutted 
by the evidence of the transferror that no trust was intended, but 
that the transfer was made under a misapprehension of its legal 
effect, (e) 

Although subsequent acts and declarations of the 
parent are not evidence to the support of the trust, 
subsequent acts and declarations of the child may be so.(/) 

The presumption of advancement will not be rebutted by the 
fact of the father having continued in possession of the 
estate during his life(g'), nor by the fact that he has expended 
money in repairs on the estate, (fe) 

Where a father purchases stock or shares in the name of a 

child, and receives the dividends during his life under a 

rewfve'd'b power from the son, this alone will not rebut the presump- 

father. ^ tion of advancement, (i) In Smith v. Warde(j), a father 

directed stock to be purchased in the names of himself and 

his wife in trust for his infant son. The purchase was made in 

the joint names without any trust being declared, and the father 



Subsequent 
acts and de- 
clarations. 



Possession 
by father. 



{a) Lamplugh v. Lamplugh, 1 P. 
Wms., Ill ; Mumma v. Mumma, 2 
Vem., 19 ; Finch v. Finch, 15 Ves., 43 ; 
Crabb v. Grahb, 1 M. & K., 511 ; Collin- 
son V. Collinson, 3 D. M. G., 403. 

(6) Keats v. Hewer, 10 Jur., N. S., 
1040. 

(c) Bedington v. Eedington, 3 Ridg., 
177 ; Lloyd v. Eead, 1 P. Wms., 607 ; 
Murless v. Franlcin, 1 Swanst., 13 ; 
Sidmouth v. Sidmouth, 2 Beav., 447 ; 
Collinson v. Collinson, 3 D. M. G., 409 ; 
Dumper v. Dumper, 3 Giff., 583 ; 
Williams v. Williams, 32 Beav., 370 ; 
Tucker v. Burrow, 2 H. & M., 515. 

(d) 3 Sm. and G., 403 ; see Re Oooch, 



62 L. T. N. T., 384. 

(e) See also Stone v. Stone, 3 Jur. 
(N. S.), 708. 

( / ) Sidmouth v. Sidmouth, 2 Beav., 
447. 

{g) Grey v. Orey, 2 Swanst., 600 ; 
Lamplugh v. Lamplugh, 1 P. Wms., 
Ill ; Taylor v. Taylor, 1 Atk., 386 ; 
Christy v. Courtenay, 13 Beav., 96. 

(h) Shales v. Shales, 2 Freem., 252 ; 
Elliot V. Elliot, 2 Ch. Gas., 231 ; Scaicin 
V. Scawin, 1 Y. & C. G. C, 65. 

(t) Sidmouth v. Sidmouth, 2 Beav., 
447 ; Scawin v. Scawin, 1 Y. & C. C. C, 
65. 

(j) 15 Sim., 56. 



Lee. III.] CHILD FULLY ADVANCED. 93 

received the dividends down to his decease. It was held, that 
neither his son nor his wife (who survived him) were entitled to 
the stock, but that it formed part of his assets, (a) 

If, after a purchase of property by a parent or by a 
husband in the name of a child or wife, the purchaser Devise, 
devises or bequeaths it(fe), or leases it (c), the prima fade je^ase!^ ' ""^ 
presumption of advancement will not be rebutted. 

Where a testator by his will settled £1,000, reduced annuities, 
on each of his grand-daughters, the children of his only son, and 
two years afterwards he transferred a sum of £3,200, reduced 
annuities, which was all the property he possessed, into the name 
of his son, and died at the age of ninety-four, having resided the 
last ten years of his life with his son, who was a man of considerable 
property, it was held that the transfer to the son operated as an 
absolute gift to him free from any trusts, ((i) 

If a purchase is made in the name of a child who is already 
fully advanced by the parent, there will be a resulting 
trust for the father(e) ; but if the child be not at all, or advanc""!'' 
only in part, advanced, the presumption of advancement 
will not be turned into a trust. (/) 

Where lands are purchased in a certain place in the name of 
a child by a father, but it appears that the father is bound to settle 
lands so purchased in a particular manner, there will not be any 
advancement, but the child will be a trustee merely, (gr) 

(a) See also Hoyes v. Kindersley, 2 {d) Hepworth t. Hepworth, L. E. 

Sm. & G., 195; Bone v. Pollard, 24 11 Eq., 10. 

Beav., 283. (e) Lloyd v. Read, 1 P. Wms., 608 

(6) Crabb v. Crabb, 1 M. & K., 511 ; Pole v. Pole, 1 Yes. S., 76. 

Dummer v. Pitcher, 2 M. & K., 262 ; (/) Grey v. Grey, 2 Swanst., 600 

Jeans v. Cooke, 24 Beav., 513. Elliot v. JEUiot, 2 Ch. Cas., 231. 

(c) Murless v. Franklin, 1 Swanst., (g) Blake v. Blake, 7 Bro. P. C, 

13. 241. 



LECTURE IV. 



BENAMI TRANSACTIONS AND CONSTRUCTIVE TRUSTS. 

Benami transactions — Purchase in name of cliild — Tlie Indian Trusts Act, 
ss. 81, 82 — Burden of proof — Strangers • — Benami transactions among 
Mahomedans — Assent of benamidar unnecessary • — Disputing landlord's 
title — Suit by landlord against beneficial lessees — Strict proof required 
— Oral e¥idence — Proof of payment of purchase-money — Pleading benami 
transaction against purchaser under s. 66, Civil Procedure Code — Purchase 
at sale for arrears of revenue ■ — Sale by benamidar — Standing by — 
Purchaser ■with notice ■ — Real owner may sue benamidar — Equitable 
owner — Suit by benamidar — Suit by creditors against benamidar ■ — 
Transaction avowedly fraudulent — The Indian Trusts Act, s. 84 — Parties 
to suit — The Indian Trusts Act, s. 88 — Constructive trusts — Renewal of 
leases by trustee — Principle of rule — Instances • — Remedy — Agent of 
trustee — Legal adviser gaining advantage by ignorance — Gifts to person 
in fiduciary capacity — Voluntary gift where no fiduciary relation — When 
set aside — Onus of proof where fiduciary relation exists — Where it does 
not — Spiritual influence — Parent and child — Persons in loco parentis 
— Guardian and ward — Gift to legal adviser — Extent of rule — Gift in 
expectation of death — Strangers — Principles on which Court acts — 
Badges of fraud — Independent advice — At whose instance set aside — 
Acquiescence — ■ Confirmation and acquiescence — Laches. 



Benami 
transac- 
tions. 



It will be convenient in this place to consider what is known 
as a ienanii transaction, — that is to say, the practice of 
putting property into a false name. However obj actionable 
the system may be, it is legal and in common use. (a) 

The word benami is of Persian origin, made up of two words he 
and nam meaning ' no name,' that is, nameless or fictitious. Where 
any person purchases property in the name of another or conveys 
property to another, for his own benefit with no intent to make 
that other the beneficiary thereof, there is a henami transaction. (6) 
The nominal owner is the benamidar. A benami transaction is 
invariably triangular. The simple meaning of benami is that a 
purchaser desires to buy property but does not desire to buy it in 
his own name and therefore buys it in the name of some one 
elae.(c) 



(a) M. S. Beebee Nyamut v. Fuil 
Hossein, S. D. A. of 1859, p. 139; 
Sheoraj v. Ameeruddin, 20 All., 539. 
Lokhee Narain v. Kalypuddo, 2 I. A., 
154 ; Imambandi v. Kumlesvari, 13 1. 
A., 160 ; Dharani Kant v. Kristo 
Kumari, 13 I. A., 70; Uman Parshad 
V. Oandharp, U I. A., 127 ; 3It. Thakro 
V. Oangapershad, 15 I. A., 29 ; Nawab 



Ibrahim v. Ummatul, 24 I. A., 1 ; 
Muhammad Imam v. Sardar, 25 I. A., 
161 ; Pandit Earn Narain v. Matdvi 
Muhammad, 26 I. A., 38. 

(6) For the apphcabiiity of henami 
in contracts, see Kaliammal v. Kolanda- 
velu, 5 L. W., 228 : 38 I. C, 188. 

(c) Laxmi Bai v. Kexhav Annaji, 18 
Bom. L. R., 134. 



Lee. IV.J PURCHASE in name of CHiLi). 95 

" The Law of Benami," says Mr. Mayne(a), " is in no sense a 
branch of Hindu law. It is merely a deduction from the well- 
tnown principle of equity, that where there is a purchase by A 
in the name of B, there is a resulting trust of the whole to A ; 
and where there is a voluntary conveyance by A to B, and no 
trust is declared, or only a trust as to part, that there is a similar 
trust in favour of the grantor as to the whole or as to the residue, 
unless it can be made out that an actual gift was intended. 

" In the English Courts an exception is made to this rule, 
where the person in whose name the conveyance is taken 
or made is a child of the real owner, when the transaction Purchase 
is presumed to have been made by way of advancement to child!" 
him. But this exception has not been admitted in India. 
There the rule is well established that in all cases of asserted 
benami the true criterion is to ascertain from whose funds the 
purchase-money proceeded. Whether the nominal owner be a child 
or a stranger, a purchase made with the money of another is 'prima 
facie assumed to be made for the benefit of that other"(6), whether 
a daughter or a son. 

" The wives and mothers of the members of a joint undivided 
Hindu family, so long as they continue to live in the family, and 
are supported out of its income, are just as much members of that 
family as their husbands and sons ; and as unity of possession is 
one of the essential characteristics of a joint undivided Hindu 
family, no difierence in the nature of the interests possessed by 
the different members thereof can affect the presumption with 
which we have to deal in this case. So far as the ordinary and 
usual course of things is concerned, the practice of making ienami 
purchases in the names of female members of joint undivided 
Hindu families is just as much rife in this country as that of making 
such purchases in the names of male members and .... 
the presumption against such acquisition is no less strong in the 
iormer case than in the latter, "(c) 

The Indian Trusts Act has given a statutory recogni- Trusts Ac? 
tion to benami transactions and it is enacted that— ss. 8i, 82.' 

" Where the owner of property transfers or bequeaths it and it 
■cannot be inferred consistently with the attendant circumstances 

(o) Hindu Law, Ed. 8th s. 442 ; De 717 ; AsJiabi v. Baji Tyeb, 9 Bom., 

Silvav. De /Si/ua, 5 Bom. L. R., 784. 115; Pandit Ram Narain v. Moulvi 

(5) Dhurm Das Pandey v. M. S. Muhammad, 26 Cal., 227, P. C. 
^hama Soondri Dibiah, 3 Moo. I. A,, (c) Chunder Nath Moitro v. Kristo 

229, 240 ; Oopeekrist Oosain v. Gunga- Komul Singh, 15 W. R., 357, per 

persaud Oosain, 6 Moo. I. A., 53, 74 ; Dwarkanath Mitter, J. ; Nobin Chunder 

Moulvie Syud v. M. S. Bibee, 13 Moo. v. Dokhabala, 10 Cal., 686. See, how- 

I. A., 232 ; Euknadawla Nowab Ahmed ever, Obhoy Churn Mookerjee v. Pun- 

Ali Khan y. Hurdwari Mull, 5 B. L. R., chanun Base, Marsh., 564. 
£78 ; Naginbhai v. Abdulla, 6 Bom., 



96 INDIAN TRUSTS ACT. [LeC. IV. 

that he intended to dispose of the beneficial interest therein, the 
transferee or legatee must hold such property for the benefit of the 
owner or his legal representative," and 

" Where property is transferred to one person for a consider- 
tion paid or provided by another person and it appears that such 
other person did not intend to pay or provide such consideration 
for the benefit of the transferee, the transferee must hold the 
property for the benefit of the person paying or providing the 
consideration." 

If the person in wh9se name the purchase is effected, is a 
stranger in blood or only a distant relative, he will be undoubtedly 
prima facie a trustee ; and if he desires to contend that the prima 
facie character of the transaction was not its real character, the 
burthen is on him. In Gopeehrist Gosain v. Gungapersaud Gosain{a) 
the purchase was made in the name of an only son, and it was 
argued that this circumstance changed the presumption, and that 
what would be the presumption in the case of a stranger does not 
exist between father and son ; that the presumption is advance- 
ment, and that, therefore, the burden of proof was shifted. But 
the Judicial Committee held, that there was no authority in Indian 
law, no distinct case or dictum establishing or recognizing such 
a principle or such a rule. " It is clear," said Knight Bruce, 
L. J.(6), " that in the case of a stranger the presumption is in 
favour of its being a benami transaction, that is a trust ; but it is 
clear also that in this country, where the person in whose name 
the purchase is made is one for whom the party making the purchase 
was under an obligation to provide, the case is different ; and it is 
said that that ought to be deemed the law of India also, not because 
it is the law of England, but because it is founded on reason and 
the fitness of things, if I may use the expression, or natural justice, 
that on such grounds it ought to be considered the law of India. 
Now, their Lordships are not satisfied that this view of the rule is 
accurate, and that it is not one merely proprii juris. Probable 
as it may be, that a man may wish to provide for his son to a certain 
extent, and though it may be his duty to do so, yet there are other 
considerations belonging to the subject ; among others, a man 
may object to making his child independent of him in his lifetime, 
placing him in such a position as to enable him to leave his father's 
house and to die, leaving infant heirs, thus putting the property 
out of the control of the father. Various reasons may be urged 
against the abstract propriety of the English rule. It is merely 
one of positive law, and not required by any rule of natural justice 
to be incorporated in any system of laws, recognizing a purchase 
by one man in the name of another to be for the benefit of the real 
purchaser. Their Lordships, therefore, are not prepared to act 

(a) 6 Moo. L A., 53 (6) P. 76. 



Lee. IV.] BENAMI TRANSACTION. 97 

against the general rule, even in the absence of peculiar circum- 
stances ; but in India there is what would make it particularly 
objectionable, namely, the impropriety or immorality of making 

an unequal division of property among children Their 

Lordships are, therefore, satisfied that, according to the law by 
which this case must be governed, the presumption in favour of 
its being a benami transaction is different from that which would 
have existed by the law of England." 

In so far as the practice of holding and buying lands in the 
name of another exists, that practice exists in India as „ 
much among Mahomedans(a) as among Hindus ; and the transitions 
judgment in Gopeekrist Gosain v. Gungapersaud Gosain(b) among 
and the cases therein referred to are, at all events, authority Mahome- 
for the propositions that the criterion of these cases in *"^' 
India is to consider from what source the purchase-money comes ; 
that the presumption is, that a purchase made with the money of 
A, in the name of B, is for the benefit of A{c) ; and that, from the 
purchase by a father, whether Mahomedan or Hindu, in the name 
of his son, you are not at liberty to draw the presumption which 
the English law would draw, of an advancement in favour of that 
son.((Z) Although a purchase by a Mahomedan with his own 
money of an estate in the name of his son, raises a presumption of 
the son's name being used benami for his father, proof that the 
father's object was to affect the ordinary rule of succession as from 
him to that property is sufficient to give, as respects strangers, 
a title to the son independent of, and adverse to, the father, (e) 

The knowledge and assent of the person in whose name the 
purchase is made is immaterial ; in the greater number of . . , , 
instances of benami purchases they are made in the names benamidar 
of persons ignorant at the time of their being so made.(/) unnecessary, 

(a) Uzhar Ali v. Ultaf Fatima, 13 1889 (nephew) ; Chunder Nath v. 

M. I. A., 232 ; In re Kahandas, 5 Bom., Kristo, 15 W. R., 357 ; Nobin Chunder 

154. A benami transaction is called v. Dokhobala, 10 Cal., 686 (daughter) ,- 

in Mahomedan law ' furzee ' or ' fioti- Jitam v. Mt. Manbarta, 5 Ind. Cas., 85 ; 

tious name.' Mt. Bilas v. Dasraj, 37 All., 557, P. C. 

(5) 6 Moo. I. A., 53 ; Bhowan Doss (mistress), but see Kallu Mai v. 81mm- 

V. Sheikh, 13 M. I. A., 346 ; Sham Lai v. auddin 1912 P. W. K., 269 {cmUra in 

Johri Mai, 1 I. C, 732 ; Aahabai v. the case of dancing girl). 
Haji Tyeb, 9 Bom., 115; De Silva v. (d) Moulvie Sayyud, Uzhur Ali v. 

De Silva, 5 Bom. L. R., 784 ; Bam Mussummat Bebee Vltaf Fatima, 13 

Narain v. Mahomed Ali, 26 Cal., 227, Moo. I. A., 232, 246 ; Meeyappa Chetty 

P. C. Ohulam v. Teja, 73 P. R. 1918. v. Maung Ba Bu, 8 Ind. Cas., 450 

(c) Abid Ali v. Asgar Ali, 7 N. L. R., Qulam Jafar v. Masluddin, 5 Bom., 23 

159 (grand-child) ; Choudrani v. Tarini, Nagimbai v. Abdulla, 6 Bom., 717 

8 Cal., 545 ; Bai Motivahoo v. Purahot- Mt. Bilas v. Daaraj, 37 AH., 557, P. C 
tam JDyal, 29 Bom., 306; Dhami v. (e) Rulmadawla Nowab Ahmed Ali 

Kriato, 13 Cal., 181 ; Sanjivaroya v. Khan v. Hurdwari Mull, 5 B. L. R,, 

BaUmbiki, 17 M. L. J., 339; see 578. 

however, Ihirga Prasad v. Prankrishna, ( / ) Qopeehriat Ooaain v. Oungaper^ 

3 Pat. L. W., 341 : 39 I. C, 530 (wife) ; saud Ooaain, 6 Moo. I. A., 63 (74). 
Bura Mai v. Bhagavan Das, 61 P. R., 

A, LT 7 



98 DISPUTING landlord's TITLE. [LCC. IV. 

As a general rule, a tenant cannot dispute his landlord's title. 
The rule is founded upon the doctrine of estoppel, which 
^'sput'^s is, as Lord Coke says, " a curious and excellent sort of 
tfue."*^ ^ learning." But it has been decided that the doctrine of 
estoppel does not apply to benami transactions, and that 
m this country a lessee may deny that the person in whose favour 
he has executed a lease was the real lessor, and beneficially entitled 
to the rent, and that he may prove by parol evidence that the 
person who granted the lease was only a henamidar for a third party. 
In Donzelle v. Kedarnath Chuckerbutty(a), Paul, J., said : " In 
England, where the usage denoted by henami transactions is wholly 
unknown, it is supposed, and therefore assumed, that all deeds and 
conveyances truly represent the titles of parties set forth in them. 
Deeds are called solemn instruments ; they are executed after con- 
siderable deliberation, and under the guidance, and with the advice, 
of able legal advisers. In England, and in fact wherever the 
English law prevails, and English institutions exist, it is right to 
suppose that what is stated in deeds and other similar documents 
represents the true state of things, and consequently, parties should 
not be allowed afterwards to question the truth of what has been 
deliberately stated. But in this country, it being well known that 
documents are neither: so drawn nor executed as in England, and 
it being equally well known that persons make statements wholly 
regardless of the truth for present and ulterior purposes, it would 
be unsafe and unjust to hold parties strictly to statements made by 
them in deeds and other documents, and to apply the technical 
doctrine of estoppel in the manner in which that doctrine is applied 
in cases governed by English law." The Indian Evidence Act 
reproduces the law in England and provides that no tenant of 
immoveable property shall during the continuation of the tenancy, 
be permitted to deny that the landlord of such tenant, had, at the 
beginning of the tenancy, a title to such immoveable property. (6) 
For the purposes of this provision, the real owner rather than the 
henamidar is the landlord and unless the henamidar shows any 
legal right to sue under the general law, he cannot maintain a suit 
for rent on the tenancy, (c) In such cases, payment to the real 
owner is a proper defence. (^) In the absence of particular-circum- 
stances where the rule of estoppel may come into play, it is open 
to the tenant to urge, that the plaintifi as henamidar for the bene- 
ficial owner is not entitled to claim, (e) 



(a) 7 B. L. R., 720. See also Mt. (c) Kuppu Konan v. Tirugnana 

Ind&rbutlee v. Shaikh, 24 W. B.., 44 ; Sambanda, 31 Mad., 461. See also 

Kuppu Konan v. Thirugnana Sam- Thirumalayappa v. Swami, 18 Mad., 

banda, 31 Mad., 461 ; Chidambaram v. 469. 

Vdu Pillai, 7 M. L. T., 177. But see {d) Muthuaami v. Solai Konan, 26 

contra, Meer Jangoo v. Chote, 6 N. L. M. L. J., 597. 

K., 161. (e) Rahimunissa v. Mahadeb, 12 G. L. 

(6) S. 116. J., 428. 



Lee. IV.J 



PROOF OF TITLE. 



99 



Suit by 

landlord 

against 

beneficial 

lessees. 



Where a lease was taken benami in the names of three ladies, 
who for some time paid rent to the lessor, and who were 
sued for rent by him on several occasions when he obtained 
decrees, which he executed against their property, the 
lessor was nevertheless allowed, when the ladies were unable 
to pay any rent, to sue their husbands, who were the 
beneficial lessees, (a) 

The Courts look with jealousy on benami transactions, and a 
person who claims under such a title must prove his case 
strictly, and he can only recover on the strength of the case required"" 
he asserts ; mere inferences will not be sufficient to induce 
the Court to take away property from the person in whose name it 
is held. (6) But although the habit of holding land benami is 
inveterate in India, that does not justify the Courts in making 
every presumption against apparent ownership, (c) 

Where bond fide creditors of the ostensible owner of property 
are claimants on that property, the Court will require strict proof 
on the part of any one seeking to have it declared that he held it 
only benami. (d) Though there may be in the evidence circum- 
stances which may excite suspicion, and doubt may be entertained 
with regard to the truth of the case made, it is essential to take 
care that the decision of the Court rests, not upon suspicion but 
upon legal grounds, established by legal testimony, (e) It 
is not necessary that the nature of the transaction should 
be proved by writing, but oral evidence is admissible. (/) 

The question, whether a transaction, purporting on 
its face to be a gift or a sale is benami, is always one of 
intention, (gr) In determining its real nature the consider- 



Oral 
evidence. 



Evidence of 

benami 

transaction. 



(a) Debnath Roy Ghowdhry v. Guda- 
dhur Dey, 18 W. R., 132. 

(6) SreemancJiunder Dey v. Gopal 
Chunder Ghuckerbutty, 11 Moo. I. A., 
28 ; Nowab Azimut Ali Khan v. Hurd- 
waree Mull, 13 Moo. I. A., 395 ; Faez 
Buksh V. Fukeeruddeen, 14 Moo, I. A,, 
234 ; Ranga v. Srinivasa, 21 Mad., 56 ; 
Uman Per shad v. Qandharp, 15 Cal., 
20 P. C. ; Suleman v. Nawab Mehdi, 25 
Cal., 473 P. C. ; Nirmul v. Mahomed, 
26 Cal., 11 P. C. ; Mahaditta v. 
Mrs. Nicholson, 19 I. C, 770 ; Habi- 
bullah V. Nayae, 22 I. C, 536; Abdul 
Rahman v. Mirathayar, 24 I. C., 
365; Raghunathachari v. Aravamutha 
Iyengar, 34 I. C, 617 ; Vaidyanatha 
Y. Vaidyanatha, 29 I. C, 970. 

(c) Moonshee Buzloor Ruheem v. 
Shumsoonnissa Begum, 8 W. R., P. C. 
Rul., 11. 

(d) Ruknadawla Nowab Ahmed Ali 



Khan v. Hurdwari Mull, 5 B. L. R., 
578 ; Suleiman v. Mehndi, 25 Cal., 473, 
P. C. ; De Silva v. De Silva, 5 Bom. 
L. R. , 784 ; Ramabai v. Ramachandra, 
7 Bom, L. R., 293 ; Tirumalayappa v. 
Swami, 18 Mad,, 469. 

(e) Sreemanchunder Dey v. Gopal 
Chunder Chuckerbutty, 11 Moo. I, A., 
28, 44 ; Faez Buksh Chowdry v. Fukeer- 
oodeen Mahomed Ahassun Chowdry, 14 
Moo. I. A,, 234 ; Ramabhai v. Rama- 
chandra, 7 Bom, L, R,, 293. 

( / ) Palaniyapa Ghetti v. Arumugam 
Chetti, 2 M. H. C. R,, 26; Tara 
Monee Debia v, Shibnath Tulapatur, 
6 W. R,, 191 ; Kumara v, Srinivasa, 
11 Mad., 213; Laxmi Bai v, Keshav, 
18 Bom. L, R,, 134. 

(g) Ismael v. Hufiz, 33 Cal., 773 
P. C. It is a mixed question of fact 
and law, ML Janki Bai v. Najaf Khan, 
43 I, C, 49. 



100 



PROOF OF TITLE. 



[Lec. IV. 



ations are several, (a) The source of the purchase-money is the 
first index of ownership.{6) Continued possession is a valuable 
evidence, but the merit of it may vary with its publicity, (c) The 
custody of title-deeds favours the title of the person in whose 
name the property stands (ti) and though unaccompanied by 
possession suffices to shift the burden on the party in possession. (eV 
Eeceipt of rents(/), registration in revenue recordsfgr), consider- 
ation(A), position of parties(i), subsequent conduct(y), and 
surrounding circumstances(i) may always be proved and consi- 
dered. If it is once established that a transaction is benami, the 
fact that the deeds and proceedings bear the benamidar's name, is 
perfectly consistent with the benami case, and is of no essential 
weight on the one side or the other in considering who is the prin- 
cipal.(?) 

The real owner of property, who is actually in possession, may 
plead in answer to a suit for redemption by a certified 
purchaser under s. 66 of the Civil Procedure Code(m), 
that the purchase was made benami by the plaintiff on 
his behalf. (w) This section corresponds with s. 260 of 
Act VIII of 1859 and provides that " No suit shall be 
maintained against any person claiming title under 
a purchase certified by the Court in such manner as 
may be prescribed, on the ground, that the purchase 



Pleading 
benami 
transaction 
against 
purchaser 
under s. 66, 
Civil Pro- 
cedure Code 



(o) Kali Sahu v. Kedar Mai, 38 
I. C, 561. 

(6) Bai Motivahoo v. Pursliotlam, 
29 Bom., 306 ; Ram Narain v. Muham- 
mad Hadi, 21 Cal., 227 P. C. ; 
Srimati Nrityamoni v. Lakhan Chun- 
der, 43 Cal., 660 ; Sitara Begum v. Md. 
Ishaq Khan, P. C., 32 I. C, 365. 

(e) Govinda v. Lall Kishen, 28 Cal., 
370. Also Indian Evidence Act, s. 110: 
" Where the question is whether any 
person is owner of anything of which he 
is shown to be in possession, the burden 
of proving that he is not the owner is on 
the person who affirms that he is not 
the owner." See also Mt. Hoy- 
mobutty v. Sreekishen, 14 W. R., 58; 
Vpendra v. Bhupendra, 32 I. C, 267, 
Bam Sarup v. Maya Shankar, 43 I. C, 
556. 

(d) Mt. Kripom^yee v. Oerischunder, 
8 Moo. L A., 467; Bashi Chunderv. 
Enayet Ali, 20 Cal., 236. But the 
circumstances must be reliable ; 
Suleiman v. Mehndi, 25 Cal., 473, P. C. 
The relationship of the parties may 
easily explain the custody ; Mt. Kudee- 
run V. Mt. Lallum, 14 W. R., 366. 

(e) Swarnam/)yi v. Srinibash, 6 B. 
L. R., 144. 



(/) Imamhandi v. Kaleswari, 14 
Cal, 109, P. C. 

(g) Devaji v. Gadabhai, 2 B. L. R., 
85 P. C. ; Oovindrav Y. Eavji, 12 Bom., 
33 ; Pandurangv. Anant, 5 Bom. L. R., 
956. Also Thalro v.. Ganga, 10 All.,. 
197, P. C. (coupled with the payment 
of taxes). 

(h) Sham Lai Y. Amarendro, 23 Cal.^ 
460 ; see also Ismail v. Hafiz, 33 Cal., 
773, P. C. ; Gossain Bamadhan v. 
Ooasain Dalmir, 14 C. W. N., 191. 

(i) Dalip Singh v. Chaudhrain, ZO- 
All., 258, P. C. 

(j ) Ibid.; Bam Narain v. Muhamad 
Hadi, 26 Cfll., 227, P. C. ; Nawah 
Ibrahim v. Vmmat-ul-zohra, 19 All.^ 
267, P. C. ; Chaudhn Mehdi Hasan v. 
Muhammaa. Hasan, 28 All, 439, P. C. 

(k) Dalip Singh v. Chaudhrain^ 
30 All, 258 P. C. 

(I) Rohee Lall v. Dindyal Lall, 21 
W. R., 257 ; Petherpermal v. Muni-^ 
andy, 35 Cal, 651 P. a 

(m) Act V of 1908. 

(b) M. S. Buhuns Koumr v. Lalla 
Buhoree Lall, 14 Moo. L A., 496 ; 
Lolchee Narain Roy Chowdhry v. Kaly- 
puddo Bandopadhya, L. R., 2 I. A., 
154. 



Lee. IV.] PROOF OF TITLE. 

■was made on behalf of the plaintiff or on' behalf of some 
■one through whom the plaintiff claims. Nothing in this section 
shall bar a suit to obtain a declaration that the name of any 
purchaser certified as aforesaid was inserted in the certificate 
fraudulently or without the consent of the real purchaser, or 
interfere with the right of a third person to proceed against that 
property, though ostensibly sold to the certified purchaser, on the 
ground, that it is liable to satisfy a claim of such third person 
against the real owner." As a penal provision, this section should 
be construed strictly and literally, (a) This rule applies only to 
sales under the Code, and purchasers at Eevenue Sales or under the 
Public Demands Recovery Act can prove their real title. (6) It 
prohibits a suit against the certified purchaser by a beneficial 
owner(c), but does not declare benami purchases illegal(d), so that 
in such a suit the beneficial owner can have judgment for declara- 
tion or for possession, in the event of confession or in the absence 
of defence, (e) When the claim is based on grounds other than 
benami purchase, an action is not based under this section. (/) 

The provisions of this section apply to ordinary benami 
purchases at execution-sales, but do not affect purchases of 
property by a member of a Hindu family. Those provisions, 
says the Privy Council, " were designed to check the practice of 
making what are known as benami purchases at execution-sales 
i.e., transactions in which A secretly purchases on his own account 
in the name of B. Their LordsMps think that they cannot be 
taken to affect the rights of members of a joint Hindu family, who 
by operation of law, and not by virtue of any private agreement 
or understanding, are entitled to treat as part of their common 
property an acquisition howsoever made by a member of a family 
in his sole name, if made by the use of the family funds."(g') 



(a) M. S. Buhuns Kotvur v. Lalla Bhagwan, 23 All., 34 ; Bishan v. Ghazi- 

Buhoree Lall, 14 Moo., I. A., 496 ; Baj uddin, 23 All, 175 ; Khunda v. Aziz, 

Chunder v. Dinanath, 2 C. W. N., 433 ; 27 All., 194 ; Hanuman Prasad t. JadM- 

Nakori v. Samp Chunder, 5 C. W. N., nandan, 43 Cal,. 20 ; Chidambaram 

341. It covers a suit by a decree-holder Chettiar v. Subramania Iyer (1916), 

against the certified purchaser, as a 1 M. W. N., 220 ; Sitara Begum v. Md. 

benamidar for the judgment-debtor ; lahaq Khan, 32 I. C, 365. 
Rama Y. Sridevi, 16 MaA., 290; Kishan (d) M. S. Buhuns Kovmr v. Lalla 

V. Garudadhwaja, 21 All., 238. Under Buhoree Lall, supra, 
the Code of 1882 the Calcutta High (e) Hazi Arjun v. Farutulla, 9 C. 

Court held otherwise ; see Subha v. L. R. , 295 ; Samakrishnappa v. Adi' 

Hara Lai, 21 Cal., 519. narayana, 8 Mad., 511 ; Momappa v. 

(6) Venkatachellam v. PurushoUam, Surappa, 11 Mad., 234. See also O. 

19M..L. J., 210 ; Sulaiman -v. Pattuna, Venhataramayya v. K. Venkataraju, 

9 M. L. T., 294 ; Fazal v. Imam, 14 31 M. L. J., 877. 
Cal., 583. For special laws, see ( / ) See Sanhunni v. Narayanan, 17 

Muthuvaiyan V. Sinnasamivaiyan, 28 Mad.,2S2; Kumbalinga v. Ariaputra, 18 

Mad., 526 ; Amlica v. Gopal, 1 C. L. J., Mad., 436 ; Susticharn v. Annopurna, 

550. 23 Cal., 699. 

(c) A suit for a mere declaration (g) Bodh Singh Doodhooria v. Gimesk 

comes within the prohibition ; Durgav. Chunder Sen, 12 B. L. R., 317, 330. 




102 SALE BY BENAMIDAR. [LCC. IV. 

A purchase at a sale for arrears of revenue made by a managing 
„ . member of a loint Hindu family in his own name is not 

at sale for affected by the 21st section of Bengal Act I of 1845, which 
arrears of provides that " any suit brought to oust the certified pur- 
revenue, chaser as aforesaid on the ground that the purchase was 
made on behalf of another person not the certified purchaser, 
though by agreement the name of the certified purchaser was used, 
shall be dismissed with costs ; " and notwithstanding anything 
contained in that section, the members of the joint family may sue 
to enforce rights acquired by them under such a purchase as 
against the managing member, though he is the sole certified 
purchaser, (a) 

If property is purchased in the name of a benamidar, and all 
the indicia of ownership are placed in his hands, and the 
benamidar henamidar sells to a purchaser for valuable consideration, 
the true owner can only get rid of the effect of the aliena- 
tion by showing that it was made without his own acquiescence 
and that the purchaser took with notice of that fact. If the 
purchaser bought in good faith, and without notice, he acquires a 
good title as against the true owner and his heirs, or any subsequent 
purchaser from them.(&) 

Parties who stand by, and permit another to hold himself 

out to the world as the real proprietor of an estate when in 

n mg reality he is not so, and thus induce parties, innocent of 

the fraud, to lend their money upon such faith, are not 

entitled to any consideration from a Court of Equity and good 

conscience, (c) 

If a purchaser of an estate at its full value takes with notice 

of a trust, he is bound to the same extent and in the same 

witti m>tice. manner as the person of whom he purchased, for, knowing 

another's right to the property, he throws away his money 

voluntarily and of his own free will.(d) Notice is either actual(e) 

(o) Toondun Singh v. Pokh Narain Kally Doss Mitter v. Gobind Chunder 

Singh, 13 'W.Bj.ySil ; a,&Tiaed, 11. A., Paul, Marsh., 569; Bennie v. Gunga 

342 ; Bamadhan v. Bisheshar, 37 J. C, Narain Chowdhry, 3 W. R., 10. 

111. (c) Nundun Lai v. Tayler, 5 W. R., 

(6) Bamcoomar v. McQueen, 11 B. 37 ; Brojonath Ghose v. Koylash Chun- 

L. R. (P. C. ), 46 ; Chunder v. Hurbuns, der Banerjee, 9 W. R., d93 ; Nidhee 

16 Cal., 137 ; Mir Mahomed v. Kishori, Singh y. Bissonath Dass, 24 W. R., 79 ; 

22 Cal., 909, P. C. ; Sundar Lai v. Sorju v. Bir, 20 I. A., 108. 

Fakirchand, 25 All., 62. See also (d) Mancharji Sorabji Chulla v. 

Sarat Chunder v. Gopal, 25 AH., 148; Kongseo, 6 B. H, C. R., 0. J., 59; 

Khuiaja v. Muhammad, 26 AH., 490, Hakeem Meah v. Beejoy Patnee, 22 W. 

P. C. ; Maung Kya v. V. P. L. V. N. R., 8 ; Imambandi v. Kahileswari, 14 

Firm, 23 I. C, 363. See Transfer of Cal., 109, P. C. See also Narayan v. 

Property Act (1882), sa. 41, 50 and Raoji, 28 Bom., 393; Honappa v. 

Indian Contract Act (1872), ss. 108, Narasappa, 23 Bom., 406. 

178 ; Bhugwan Doss v. XJpooch Singh, (e) No estoppel where truth is 

10 W. R., 185 ; Backhaldoss Moduck v. apparent ; Tara Lai v. Sarobar, 27 Cal., 

Bindoo Bashinee Debia, Marsh,, 293; 407, P. C. 



Lee. IV.] SUIT BY BENAMIDAE. 103 

or constructive. What is sufficient to put a purchaser upon inquiry- 
is good notice, — that is, where a man has sufficient information to 
lead him to a fact, he shall be deemed cognizant of it. It is suffi- 
cient to charge a man with knowledge that he had that before him, 
which, if he had used due diligence, would have afforded the 
knowledge he desires, (a) And where there is a person in possession 
of the estate other than the nominal owner, the person in whose 
name the title-deed is, the purchaser is bound to enquire what is 
the nature of his possession. If he does not think fit to do so, 
he takes subject to the rights of the person in possession. (6) 

The real owner of property may sue the benamidar, either to 
declare his title to the property, or to recover possession 
of it, and may prove the ienami nature of the transaction, (c) ^^^' owner 
Thus where a portion of a taluq, which was confiscated by ^namidar. 
Government, really belonged to an innocent person who 
had allowed her property to remain in the name of the taluqdar, 
she was allowed to sue the Government and the taluqdar to recover 
the confiscated property, the Privy Council saying " the decree of 
confiscation against her trustee coiild on no principle of law, equity, 
or good conscience, be made to affect her, and certainly not to 
justify a sentence which, in effect, made her the sufferer for his 
o&ence."{d) 

The equitable owner of property which is in the name of a 
trustee may prove the henami nature of the transaction . 

in a suit by the trustee to obtain possession of the owner^ 
property, (e) 

Eegarding the right of the benamidar to sue, judicial opinion 
is not uniform. " In those cases which affirm the right 
of the benamidar so to sue, the right has been based partly benamidar 
on the fact that he is the transferee named in the regis- 
tered instrument constituting the transfer and on the principle 
that the contract can be enforced by the parties who have entered 
into it, and partly on the view that the benamidar must be 
presumed to be suing on behalf of the beneficial owner, or, to put 
the same idea into other words, that the suit is really brought by 
the beneficial owner through, and in the name of, the benamidar. 
On the other hand, those rulings which are adverse to the right 
of the benamidar to sue are mainly based on the ground that a 



(a) Mancharji Sorabji Chulla v. Gobardhan Seal, 20 C. W. N., 554 ; 

Kongseo, 6 B. H. C. R., 0. J., 59. Dajai v. Shyam Lai, 38 AU., 122 (suit 

(6) Hakeem Meah v. Beejoy Patnee, on a mortgage). 

22 W. B., 8 ; Vyamkapacharya v. {d) M. S. Thukrain Sookraj Koowar 

Yamanasami, 35 Bom., 269. v. The Oovemment, 14 Moo. L A., 112. 

(c) Tara Soonduree Debee v. Oojul (e) Ramanugra Narain v. Mdha- 

Monee Dosaee, 14 W. R., Ill ; Jadu sundur Kunwar, 12 B. L. R,, 433. 
Nath V. Eup Lai, 33 Cal., 967 ; In re 



104 



SUIT BY BENAMIDAB. 



[Lec. IV. 



suit cannot be maintained by any person who fails to prove, if 
his title is challenged, that he has a real interest of his own in 
the subject-matter of the suit."(a) 

In all cases where the cause of action is based on tort or a 
contract entered into by a henamidar on his ostensible title, his 
right of suit is generally admitted. (&) Thus, the henamidar can 
maintain actions on personal bonds(c) and on mortgages, for 
redemption(d!), foreclosure(c), or sale.(/ ) But where the henamidar 
seeks for possession or for other reliefs connected with possession, 
the Calcutta(5)) and the Madras(i^) High Courts deny the right of 
action, while the Bombay(i) and Allahabad( j ) High Courts hold 
a contrary view. 

The right of appeal follows the right of suit.(A;) The henamidar 
can execute his decree and his application if in accordance with 
law saves limitation. (^) But no person can be made liable for 
the decretal amount, on the ground that he is a henamidar for the 
judgment-debtor, unless the decree binds him as party or the 
judgment-debtor's representative, (m) 



(o) Per Stratohey, C. J., in Tad 
Bam V. XJmrao Singh, 21 All., 380. 
See also Chellam v. Seeni, 1918 M. W. 
N., 226 : 43 I. C, 801. 

(6) Hara Gobind v. Purnachandra, 
11 C. L. J., 47 ; for a case of damages 
ior trespass, see Bavji y. Mahadev, 22 
Bom., 672. 

(c) Oossain v. Gossain, 6 M. I. A., 
53 ; SubbaY. Ramasami, 28 Mad., 244 ; 
on appeal, 30 Mad., 88 ; Pasupaii v. 
Raman, 1915, M. W. N., 227 (plea of 
benami is not allowed) ; Singa Pillai 
Y. Ayyan-ari Qoundan, 41 Mad-, 435 ; 
Ramanuja v. Satagopa, 28 9Mad., 
205 ; Subramanya v. ArunacMlla, 18 
M. L. J., 186 ; Subramanian v. 
Alagappa, 28 Mad., 205 (payee or 
endorsee alone can sue) ; .see also 
Sesha v. Bavaji, 7 M. L. J., 85 (where 
the defendant signed a note as » 
' name-lender'). 

id) Ghinnan v. Bamachandra, 15 
Mad., 54 ; Dagdu v. Balwant, 22 Bom., 
820 ; Kaniz v. WaU-Vllah, 30 AIL, 30. 

(e) Sachitananda v. Baloram, 24 Cal , 
644. 

(/) Tad Ram v. Umrao Singh, 21 
All, , 380 ; Parameswar v. Anardan, 37 
AH., 113 ; Alikjan v. Bambaran, 12 
C. L. J., 357 ; Surendra Nath v. Kali 
Gopal, 26 C. L. X, 333 ; Began Kup.r 
V. Jhiiri, 40 T. C, 610. 

(g) Hari Gobind v. Alchoy, 16 Cal., 
364; Issur v. Gopal, 25 Cal., 98 j 
Baroda y. Dinobandhu, 25 Cal. , 874 ; 



Mahendra v. Kali Proshad, 30 Cal., 
265 ; Munahi BaairvMin v. Mahomed, 
12 C. W. N., 409 ; Ma Tun v. Ma 
Waing, 29 I. C, 892 ; Atrabanessa v. 
Safatulla, 43 Cal., 504 (partition-suit 
not allowed) ; Sheolal v. Goor, 7 I. C, 
218 ; Kirtibash y. Gopal, 20 I. C, 499 ; 
Gurjan v. Gonder, 45 I. C, 794. 

(ft) Kathaperumal v. Secretary of 
State, 30 Mad. , 245 ; Srinivasa v. 
Krishnasami, 18 I. C, 274. But see 
Venkatachela v. Subramanya, 8 M. L. 
T., 377 (where an adverse order had 
been passed under s. 335, C. P. Code). 

{i) Bavji Y. Mahadeo, 22 Bom., 612; 
Dagdu v. Bahvant, 22 Bom , 820. 

( j ) Nandkishore y. Ahmad, 18 All., 
69 ; Thakur Bokini y. Visvanath, 13 
C. P. L. E., 33 ; also Bacha v. Gaja- 
dhar, 28 All., 44. 

(k) Nand Kishore v. Ahmad, 18 All., 
69 ; Bachcha v. Gajadhar, 28 All., 44 ; 
Chellam v. Seeni, 1918 M. W. N., 226 : 
43 J. C. 801. 

(I) Kamta v. Indomoti, 37 All., 414 ; 
Chellam v. Seeni, 1918 M. W. N., 226 : 
43 I. C, 801 (case of henamidar 
transferee) ; hut see contra In re 
Muthukumara 9 M. L. T. 137 : 9 I. C, 
40; TimmannaY. Mahabala, 19 Mad., 
167 ; Basi v. Ram Krishna, 1 C. W. N., 
135 ; Baburam v. Ram Sahai, 8 C. L. J., 
305 ; Pareshnath v. Nabogopal, 29 Cal., 
1 F. B. Voan apply to set aside sale). 

(m) Jadunaih v. Srimati Premmoni, 
14 n. W. N.. 774. 



Lee. IV.] TRANSACTION AVOWEDLY FRAUDULENT. 105 

All decrees passed in suits, by or against a benamidar, are 
binding on the real owner{a), for the benamMar is always presumed 
to have the full authority of his undisclosed principal. (6) The 
operation of this rule is however limited to cases where the real 
owner has allowed the dispute to be fought out between his benami- 
dar and a third party and has abstained from coming forward, but 
when such knowledge or implied authority is disproved, the real 
owner is left unaffected by such iudgments.(c) 

Creditors may enforce their claims against the property of 
their debtor held for him 6ewami.((Z) Thus it has been held, e -(.v 
that a conveyance to female members of a Hindu family, creditors 
the father continuing in absolute and uncontrolled posses- against 
sion during his life, and his son entering into possession ''enamidar, 
after his death, could not exclude the claim of the son's 
creditors, (e) 

In many cases the object of the benami transaction is avowedly 
to defraud creditors, and against them it is, as we have 
seen(/), void.(5r) But as between the true owner and the Jyo^e^Jf'"" 
benamidar the question arises, whether the owner can sue fraudulent, 
for the restitution of the property, alleging that the sale 
was fraudulent, or can set up the defence of his own fraud in an 
action by the benamidar. Formerly it was considered that no 
title could be founded upon fraud, and that if a man chose to 
oonvey his property to another admittedly for the purpose of 
deceiving the public, defrauding his creditors, and avoiding the 
■ends of justice, he disentitled himself to any relief(A), even though 
no person had been defrauded, (i) And the Courts refused to 
recognize any distinction in favour of an ignorant female. (^' ) 



(a) Shangara v. Knshnan, 15 Kamayya, Z M. K. CR., 231; PuUen v. 

Mad., 267; Kaniz v. Wali Ullah, Ramalinga, 5 M. B.. C. 11. , 368 ; TiUak 

30 AH., 30 ; Gopi Nath v. Bhugwat, 10 Ghund v. Jitamal, 10 B. H. C. E., 206. 

Cal., 697 ; Baroda Kanta v. Ghunder, (h) Soushun Khatoon Chowdrain v. 

29 Cal., 697 ; Satish Chandra v. Brojo- The Collector of Mymensingh, S. D. A. 

.1, 22 C. W. N. 807 : 46 I. C. 104, of 1846, p. 120 ; Brimho Mye Dibeea v. 



Fakir ShaiY. Chandnumi, 2 I. C, 990. Ram Dolub Hor, S. D. A. of 1849, p. 

(6) Gopi Nath v. Bhugvmt, 10 Cal., 276 ; Rajah Rajnarain Roy v. Jug- 

•697 ; Nund Kishore v. Ahmad, 18 All., gunnath Pershad Mullick, S. D. A. of 

69 ; Ravji v. Mahadev, 22 Bom., 672. 1851, p. 774 ; Ram Soonder Sandial v. 

(c) Mata Prasad v. Ram Charan, 36 Rajah Anundnath Roy, S. D. A. of 1856, 
All. , 446. p. 542 ; Koonjee Singh v. Jankee Singh, 

(d) Musadee Mahomed Cazum She- S. D. A. of 1852, p. 838 ; Keshub 
razee v. Meerza Ally Mahomed Shoos- Chunder Sein v. Vyasmonee Dossia, 
try, QMoo. I. A, 27 ; Gopi v. Markande, 7. W. R., 118 ; Sm. Sukhimani Dasi v. 

3 Bom., 30 ; Abdul Hye v. Mir Maho- Mahendranath Dutt, 4 B. L. R. (P. C), 
med. 10 Cal., 616, P. C. 16. 

(e) Hemanginee Dossee v. Jogendro (i) Hurry Sunker Mookerjee v. Kali 
Narain Roy, 12 W. R., 236. Coomar Mookerjee, W. R., 1864, p. 265. 

( / ) Ante, pp. 58 et. seq. ( j ) Bhowany Sunkur Pandey v. 

(g) See also Gnanabhai v. Srinivasa, Purem Bebee, S. I). A. of 1853, 

4 M. H. C. R., 84 ; Sankarappa v. p. 639. 



106 TRANSACTION AVOWEDLY FEAUDULBNT. [LeC. TV, 

" Courts of Justice," said Jackson, J., " are designed for the 
protection of honest suitors, and the enforcement of just claims. 
They are not available as machinery to aid in the carrying out of 
schemes of fraud. It is right that parties should know, in making 
secret arrangements in regard to their property for fraudulent 
purposes, such as defeating their creditors, that they are entering 
on a dangerous course, and that they must not expect the assistance 
of the Courts to extricate themselves from the difficulties in which 
their own improbity has placed them."(a) 

So the Courts refused to allow a defendant to plead, that a 
deed which was admittedly executed by him, was executed for the 
purpose of defrauding his creditors, on the ground that, though a 
deed may be avoided on the ground of fraud, the objection must 
come from a person neither party nor privy to it, and that no man 
can allege his own fraud to invalidate his own deed. (6) And the 
principle was applied equally to persons claiming through the 
author of the fraud, (c) 

In the later cases, however, these principles have not been 
followed, and the original owner of property has been aMowed t& 
plead that the transaction was fraudulent, the reason being, that 
the real rights of the parties are to be ascertained, and if the plea 
were disallowed, the Courts would assist the benamidar to obtain 
property by means of fraud. Thus, in a suit brought by the plaintiff 
for registration of her name in the place of a person from whom 
she said she had purchased the property, one of the defendants 
contended that the plaintiff's vendors had purchased the property 
benami for her (the defendant), and that she had been in possession 
of it from the date of her purchase. It appeared that there had 
been no consideration for the sale to the plaintiff, and that it had 
been executed by the defendant's husband for the purpose of 
defrauding his creditors. In a previous suit the defendant had 
stated that the plaintiff's vendors were really the purchasers of the 
property. It was held that she was not estopped by this statement 
from now showing the real truth of the transaction. " In many 
of these cases," said Couch, C. J., " the object of a benami transac- 
tion is to obtain what may be called a shield against a creditor ; 
but notwithstanding this, the parties are not precluded from 
showing that it was not intended that the property should pass by 
the instrument creating the benami, and that in truth it still 

remained in the person who professed to part with it 

Although, no doubt, it is improper that transactions of this kind 

(o) Alohsoondry Ooopto v. Horo Lai 436. 
Boy, 6 W. R., 287. (c) Luckhee Narain CJiucherbuUy v. 

(6) Obhoy Churn Ohuttuck v. Treelo- Tara Monee Dossee, 3 W. B., 92 ? 

chun Chatterjee, S. D. A. of 1859, p. Purikheet Sahoo v. Eadha Kishen 

1639 ; Ram Lall Dut v. Kishen Chunder Sahoo, 3 W. R., 221 ; Kalee Naih Kur 

Banerjee, S. D. A. of 1860, pp. 1, v. Doyal Kristo Deb, 13 W. R., 87. 



Lee. IV.] INDIAN TRUSTS ACT. 107 

should be entered into for the purpose of defeating creditors, yet 
the real nature of the transaction is what is to be discovered, the 
real rights of the parties. If the Courts were to hold that persons 
were concluded under such circumstances, they would be assisting 
in a fraud, for they would be giving an estate to a person when it 
was never intended that he should have it." (a) 

The rule was thus laid down in terms rather too broad. A 
distinction was soon made between cases in which the fraud had 
been accomplished and those where it stopped at the stage of 
intention. " It is clear, therefore," said(6) Mookerjee, J., " that 
although in the earlier cases a very stringent rule was laid down to 
the effect that a person is not entitled to ask a Court of Justice to 
afford him relief from the consequences of his own misconduct, the 
later cases enunciate a more lenient rule that the real nature of the 
transaction ought to guide the Court in determining the real rights 
of the parties. Upon this rule has been engrafted the distinction 
that, although where the intended fraud had been carried into 
effect, the Court will not allow the' true owner to resume the indivi- 
duality which he has once cast off, in order to defraud others(c) yet 
if he has not defrauded any one, the Court will not punish his inten- 
tion by giving his estate away to another, where retention of it is 
an act of gross fraud. "(tZ) This view has been accepted by the 
Privy Council(e) and the law is thus finally settled. The Indian 
Trusts Act likewise enacts that " Where the owner of property 
transfers it to another for an illegal purpose and such 
purpose is not carried into execution, or the transferor J.^^ Indian 
is not as guilty as the transferee, or the effect of per- s.'^sl.^ "^ ' 
mitting the transferee to retain the property might be 
to defeat the provisions of any law, the transferee must hold the 
property for the benefit of the transferor."(/) 



{a)S.M. DebiaOhowdhraitiY.Bimola M. W. N., 107. The fraud may be 
SoondureeDebia, 21 W. R., 4:22. And partially accomplished; Govinda v. 
see Gopeenath Naik v. Jadoo Ghose, 23 Lalakishen, 28 Cal., 370 ; Hirji v. 
W. R., 42 ; Bykwnt Nath Sen y. Gobool- Gordhan, 32 I. C, 530. 
lah Sikdar, 24 W. R., 391; Param (d) Labo v. Brito,2lM.&d., 2S1; Sham- 
Singh V. Lalji Mai, 1 AH., 403; Lai v. Amarendro Nath, 23 Ca.1 , i60 ; 



iji V. Krishna, 18 Bom., 372. As Kalicharan v. Basik, 23 Cal., 962 ; 

to the principles upon which English Honapa v. Narsapa, 23 Bom., 406 ; 

Courts proceed where an attempt is Mandaya v. Ma B., 17 I. C, 91S. 

made to create a trust for a fraudulent (e) Petherpermal v. Muniandy, 35 

purpose, see ante, p. 44. Cal., 551, P. C. 

(6) Sham Lai v. Amarendra, 23 Cal., ( /) This section (84) embodied the 

460 ; Jadu Nath v. Bup Lai, 33 Cal., principles of the English law of that 

967. date and the fact that their soundness 

(c) Banha Behari v. Bajkumar, 27 has been subsequently doubted by 

Cal., 231 ; Rangammal v. Venkata, 18 English Courts would not justify 

Mad , 378 ; on appeal, 20 Mad., 323 ; Indian Courts in departing from the 

Munasami v. Subboryar, 31 Mad., 97 ; rule so laid down : Munusami v. Sub- 



„ ^pa V. Hirsa, 31 Bdm., 405 ; barayar, 31 Mad., 97. 
Suryanarayana v. Butchiah (1916), 1 



108 INDIAN TRUSTS ACT. [LCC. IV. 

The real ground of this distinction is based on the maxim, 
In pari delicto potior conditio defendentis et possidentis, so that 
where fraud or illegality has been effected by a colorable grant, 
the Court helps neither party and says " Let the estate lie where 
it falls."(a) As a logical result of this maxim, it follows that in an 
action for possession on the conveyance, the defendant is not 
precluded from setting up the benami nature of the transaction, 
notwithstanding that the fraud had been carried out and the 
defendant is thereby sheltered by the plea of his own fraud. (6) 
^' The rule of law, which allows a defendant to protect himself 
against an action by the plaintiff on a contract made or deed 
entered into between them by showing the illegal or immoral nature 
of the transaction, is based on grounds of public policy and the 
benefit that accrues thereby to the defendant is the inevitable 
result of the application of such rule and is not based on any right 
to which he is entitled."(c) 

But as between the benamidar and the real owner, the judgment 
in a suit is conclusive, if in su'ch suit the bond fides of the trans- 
action had been avowed and upheld.(d) " It is a clear and well- 
established principle of law," says Abdur-Kabim, J., "that, when the 
decree of a Court has been passed upholding a certain transaction 
between the parties to a suit, neither the plaintiff nor the defendant 
will be allowed afterwards to say that the decree was the result of 
a collusive arrangement arrived at by them in order to carry "out a 
scheme of fraud and that it should therefore be treated as a ntdlity, 
and the state of things which existed previously to the passing of 
such decree be restored. And so also, when two persons have 
combined to defraud a third person and succeeded in their effort 
without obtaining the decree of a Court, the Court will not permit 
one of the parties to such fraud to show that the transaction 
between him and the other party to the fraud was not really what it 
purported to be and that it does not therefore bind him. In the 
first case the decree is regarded as a subsisting and effectual decree, 
so that the question covered by it is treated as Res Judicata ; and 
in the second case, the Court refuses on grounds of public policy to 
help a man, who, by his act, has imposed upon another, to get rid 
of the consequences of that act as against himself."(e) 

A benamidar may generally sue in his own name and where 

there is no objection, he can have a decree in his favour. 
To^suU Such a suit therefore is so far properly instituted, although 

it may be partially defective. {/ ) If the defect is charged, 

(a) Petherpermal v. Muniandy, (c) Baghavulu v. Adinarayana, 32 

35C»1., 551 P. C. Mad, 323. 

(6) Preo Nath v. Kazi Mahomed, 8 (d) Chinverappa v. Puttappa, 11 

C. W. N., 620; Maniram v. Oanesh, Bom,, 708. 

6 N. L. R., 146 ; Babaji v. Krishna, 18 (e) Kqndeti Kama Bow v. Nukam- 

Bom., 372. But see contra Sidlingappa ma, 31 Mad., 485. 

V. Hirsa, 31 Bom., 405. ( / ) Bhola v. Earn Lall, 24 Cal., 34. 



Lee. IV.] 



CONSTRUCTIVE TRUSTS. 



im 



the real owner must be allowed to be made a party, (a) Likewise 
in a suit by the real owner the henamidar may be added. In either 
case the addition makes no difEerence, for the old suit is only 
continued and the question of limitation does not arise. (6) 

A suit will lie in which the plaintiff does not sue to render 
void an act done by him in fraud, or in other terms, to be relieved 
from the effect of his own fraudulent act, but simply sues to have 
an act legal in itself enforced, though done with the motive of keep- 
ing property out of the reach of his creditors, (c) 

The last kind of trust with which we have to deal is that known 
as a constructive trust. A constructive trust is one which 
the Court elicits by a construction put upon certain acts of tive teusts. 
parties. Such a trust is raised wherever a person clothed 
with a fiduciary character{d), as for instance, a factor(e), agent(/), 
partner(^), or mortgagee(A), gains some personal advantage, by 
availing himself of his situation as trustee ; for, as it is impossible 
that a trustee should be allowed to make a profit by his office, it 
follows that so soon as the advantage in question is shown to have 
been acquired through the medium of a trust, the trustee will be 
decreed to hold for the benefit of his cestui que trust.{i) But 
until a judgment is obtained, the money cannot be said to belong 
to the principal.(j ) 



(a) mta Nath v. Nobin Ohunder, 5 
C. L. R., 102. 

(b) Baiji V. Mahadev, 22 Bom., 672; 
Baboo Baghoo Nath v. Byjnath Sahoy, 
24 W. R., 349; Chunder Coomar v. 
Gocool Chunder, 6 Cal., 370. But see 
Jaga Bandhu v. Srinath, 18 I. C, 392. 

(c) Suboodra Bebee v. Bilcromadit 
Singh, S. T>. A. of 1858, pp. 543, 648. 

(d) Williams y. Stevens, 36 L. J. P. 
C, 21 ; Docker v. Somes, 2 M. & K., 
665 ; Erusappa v. Commercial <fc Land 
Mortgage Banks 23 Mad., 377. 

(e) East India Co, v. Henchman, 1 
Ves., J., 287 ; Law v. Law (1905), 1 Ch. 
(0. A.), 140. 

( / ) Fawcett v. Whitehouse, 1 B. & M., 
132 ; Hichens v. Congnve, ib., 150, n; 
Brookman v. Rothschild, 3 Sim., 153 ; 
Oillett V. Peppercorn, 3 Beav. , 78 ; 
Edwards v. Lewis, 3 Atk., 538 ; Griffin 
V. Griffin, 1 Soh. and Lef., 352 ; Mul- 
vany v. Dillon, 1 B. & B., 417 ; Mul- 
hallen v. Marum, 3 De & Wal., 317 ; 
Gluckstein v. Barnes (1900), A. C, 240 ; 
Hasanali v. Ismail jee, 9 Bom. L. E., 
606 ; Gold Exploration &c. Syndicate 
(1900), 1 Q. B. (C. A.), 233 ; Bamasami 
V. Karuppan, 29 M. L. J., 551 ; Mohin 
V. Anil, 13 C. W. N., 513 : 9 C. L. J., 
362 : 5 M. L. T., 247. See also Kali 
Baksh V. Ram Gopal, 36 All., 81, P. C. 



(g) Bentley v. Craven, 18 Beav., 75 
Burton v. Wookey, 6 Mad., 367. 

(h) Erusappa v. Commercial & Land 
Mortgage Bank, 23 Mad., 377 ; Alavala 
Balayya v. Alavala Guravayya, 1 L. 
W., 874: 26 I. C, 55; Venkata v. 
Srinivasa, 7 M. L. T., 148 ; Chitta 
Bhula V. Bai Bai Jamui, 40 Bom., 483. 
An ordinary mortgagee is not a con- 
structive trustee for the mortgagor of 
his power of sale [Warner v. Jacob, 20 
Ch. D., 220 ; Tombin v. Luce, 43 Ch. D. 
(C. A.), 191] ; but after he has paid, 
himself he is a trustee for the surplus 
proceeds of the sale [Charles v. Jones,. 
35 Ch. D., 544 ; Eley v. Bead, 76 L. J. 
N. S. (C. A.), 39]. But a mortgagee in 
possession is a constructive trustee for 
the rent and profits (Coppring v. Cooke,. 
1 Vem., 270 ; Maddocks v. Wren, 2 Ch. 
Rep., 109), though the liability as 
trustee will not attach when the trans- 
fer is made by order of Court in a 
redemption-action. [Hall v. Eeevard, 
22 Ch. D. (C. A. ), 430.] See also Benga 
V. Gnanaprakasa, 30 Mad., 67. 

(»■) Lewin, 12th Edn., 201 ; see Raghu- 
nathji v. Varjiwandas, 30 Bom., 578 ; 
Gopi Narain v. King Behari, 34 All., 
306. 

{J ) Lister dk Co. v. Stubbs, 45 Ch. D.^ 
(C. A.), 1. 



110 CONSTRUCTIVE TRUSTS. [LeC. IV. 

The term ' constructive trustee ' is often used as synonymous 
with a trustee de son tort.{a) In Soar v. Ashwell{b) Lord Esher, 
M. R., said : "The cases seem to me to decide that, where a person 
has assumed, either with or without consent, to act as a trustee of 
money or other property, i.e., to act in a fiduciary relation with 
regard to it, and has in consequence been in possession of or has 
exercised command or control over, such money or property, a 
Court of Equity will impose upon him all the liabilities of an express 
trustee of an express trust. The principal liability of such a 
trustee is that he must discharge himself by accounting to his 
cestui que trust for all such money or property without regard to 
lapse of time. There is another recognised state of circumstance 
in which a person not nominated a trustee may be bound to liability 
as if he were nominated a trustee, namely, where he has knowingly 
assisted a nominated trustee in a fraudulent and dishonest dis- 
position of the trust-property. Such a person will be treated by a 
Court of Equity as if he were an express trustee of an express 
trust." In AbJcan v. Soran{c), Sadasiva Iyer, J., observed : " I find 
that the expression 'express trustees' is held to include even 
trustees de son tort who profess (without title) to hold certain pro- 
perties as trustees, that trustees de son tort might even become con- 
structive trustees if they renew leases in their own names and that 
a trustee de son tort cannot plead limitation against the cestui que 
trust as s. 10 of the Limitation Act, providing that a person in 
whom property has become vested in trust for specific purpose can- 
not plead limitation in a suit by a cestui que trust, is applicable to 
trustees & sow tori also." Persons who wrongfully usurp the power 
of trustees, such as members of a committee, become virtually 
trustees de son tort and are liable for breaches of trust. (i) But a 
person claiming a title hostile to the trust is only a trespasser. (e) 

The Indian Trusts Act enacts that " Where a trustee, executor, 
partner, agent, director of a company, legal adviser, or 
Act'Tss"^*^ other person bound in a fiduciary character to protect 
' ' * tlie interests of another person, by availing himself of his 
character, gains for himself any pecuniary advantage, or where 
any person so bound enters into any dealings under circum- 
stances in which his own interests are, or may be, adverse to those 
of such other person, and thereby gains for himself a pecuniary 



(o) Mara v. Brown (1896), 1 Ch., de jure trustee; Niamat Ali v. Ali 

199 ; Jugalkishore v. Lakshmandas, 23 Raza, 37 AH., 86. 

Bom., 65Q ; Life Association of Scotland (d) Ramanathan v. Swaminatha, 23 

V. Siddal, 3 D. G. F. & J., 38 ; Barnes M. L. J., 178 ; Abkan v. Soran, 38 Mad., 

V. Addy, 9 Ch. App., 244 ; Bvdree Das 260 ; see Siddhan v. Gawrishankar, 43 

V. Chooni Lai, 33 Cal., 789. I. C, 165. 

(6) (1893), 2 Q. B., 390. (e) Kaliswara v. Nataraja, ' 19 M. 

(c) 38 Mad., 260 ; A de facto trustee L. J., 772. 
must be primd facie presumed to be a 



Lee. IV.] RENEWING LEASE. Ill 

■advantage, he must hold lor the benefit of such other person the 
advantage so gained." 

A common instance of a constructive trust is, where trustee 
of leasehold property renews the lease in his own name. 
The leading case on this point is Keech v. 8andford.(a) Renewal of 
There the lessor refused to renew the lease for an infant, Jrustee^ 
and the trustee then got a lease made to himself. Lord ' 

King, however, declared that the trustee must hold the renewed 
lease for the infant, though no fraud was alleged, saying : " This 
may seem hard, that the trustee is the only person of all mankind 
who might not have the lease ; but it is very proper that rule 
should be strictly pursued, and not in the least relaxed." 

An executor rfe sow tort cannot renew a lease in his own name. (6) 
Where the renewed lease comprises lands not included in the former 
lease, the trust will not attach to such lands, (c) 

The principle upon which trustees and executors are not allowed 
to take renewals of leases of trust-property to themselves 
is, that it is for the public good that persons in fiduciary o/'"';'^'-^ 
positions shall not be allowed to reap any benefit from the 
positions which they h.old..{d} 

If a person who has a limited interest in a lease renews it in 
his own name, he can only hold it as a trustee for the other 
persons interested(e) ; and if a settler creates a trust of a 
leasehold interest, he cannot renew the lease for his own benefit. (/) 

If a trustee, upon his representations, acquires an absolute 
interest in the trust-property by virtue of an Act of the Legislature, 
he will be a trustee of the interest he has acquired. (5) Where 
several persons are jointly interested in a lease, one of them cannot 
obtain a renewal to himself (A), as for instance, in the case of one of 
several partners obtaining a renewal of the lease of the partnership 
premises, (i) A mortgagee who renews a lease must hold it for the 



(o) Sel. Cas., Ch., 61 ; Saijnath v. Lord Sanelagh's Will, 26 Ch. D., 590 ; 

Harikishen, 6 C. W. N., 372. and see Griffith v, Owen (1907), 1 Ch., 

(6) Mulvany v. DiUon, 1 B. & B., 195. 

417; Qriffin v. Griffin, 1 Soh. & Lef., (g) Cooper v. Phibbs,!,. R,,2H. L. 

352. Cas., 149 : see also Yem v. Edwards, 

(c) Acheson v. Fair, 3 Dr. & War., 3 K. & J., 564 ; 1 DeG. & J., 598. 
512; Giddinga v. Giddings,3 Euas., (h) Palmer v. Young, 1 Vem., 276 • 
241. Ee Morgan, 18 Ch. D. (C. Hamilton v. Denny, 1 B. & B., 199 ■ 
A.), 93. Jackson v. Welsh, L. & Q., t; Plunk' 

(d) Griffin v. Griffin, 1 Soh. & Lef., 346. 

354 ; Blewett v. Millett, 7 Bro. P. C, (i) Featherslonhaugh v. Fenwick, 17 

367. Ves., 311 ; Clegg v. Edmondson, 22 

(e) James v. Dean, 11 Ve<!., 383; Beav. , 125; 8 D. M. G., 787; Cleaq y 
Griffith T. Owen (1907), 1 Ch., 195. Fishwick, 1 Mao. & G., 294 ; CUments 

(/) Oolegravev. Manby, GMadd,, 72; v. Hall, 2 DeG. & J., 173. 
Tanner v. Elworthy, 4 Beav., 487. Re 



Instances. 



112 AGENT OF TRUSTEE. [LfiC. IV. 

benefit of the mortgagor, (a) A trustee cannot, by fraudulently 
incurring a forfeiture of the lease of the trust-property, obtain a 
renewal to himself. (6) So a tenant who fraudulently fails to pay 
Government revenue, in consequence of which the estate is sold,^ 
and becomes the purchaser, will be declared a trustee of the land 
for the lessor, (c) Where a trustee who has a right to obtain a 
renewal sells the right, the trust will attach upon the purchase- 
money in his hands. ((?) 

The trustee will have to assign the renewed lease free from 
Remedy ^^^ incumbrances, except an under-lease made bond fde at 

the best rent(e), and he must account for mesne rents and 
profits(/), even though the lease has expired.(^) The trustee will 
be entitled to be indemnified against covenants entered into upon 
the renewal, to his costs(fe), and to money laid out upon lasting 
improvements, (i) If the trustee has parted with his interest in the 
renewed lease to a volunteer(j'), or to a purchaser with notice(fc), 
the cestui que trust will, nevertheless, be entitled to the same reme- 
dies as against the trustee. (?) 

A mere agent of a trustee will not be made to account to the 
cestui que trust as a constructive trustee(m), unless he be- 
trus?ee° comes a party to the breach of trust, when he will be liable 

to the extent of his participation, (w) 

A legal adviser is bound to give sufficient advice to his client(o),. 
Legal ad- ^^^ ^^ ^^7 advantage or property comes to him by his ignor- 

viser gaining, ance or the neglect of his duty, he will be a constructive 
advantage by trustee for the benefit of the person who would have bene- 
ignorance. g^^^^ -^ ^j^^ adviser had done his duty. " Whether," said 
Lord Eldon(p), " you meant fraud or not, you who have beea 



(a) Eakestraw v. Brewer, 2 P. Wms., Be Spencer, 51 L. J. N. S. Ch., 271 -^ 

510 ; Nesbitt v. Tredenniek, 1 B. & B., Brinaden v. Williams (1894), 3 Ch., 

29. 185 ; Coleman v. Bucks & Oxon Bk. 

(6) Hughes v. Howard, 25 Beav., (1897), 2 Ch., 24. 

575. (&) Walley v. Walley, 1 Vem., 484 ;. 

{c) Balkrishna Vasudev v. Mad- Eyrev. Dolphin, 2 B. &, B., 290 ; Parker 

havrav Narayan, 5 Bom., 73 ; Amolak v. Brooke, 9 Ves., 583; Coppin v. Ferny- 

V. Dhondi, 30 Bom., 466. hough, 2 Bro. C. C, 291. 

(d) Owen v. Williams, Amb., 734. (I) See Sahebzada Singh v. Ohun- 

(e) Bowles v. Stewart, 1 Sch. & Lef., daree Roy, 1 W. E., 256. 

230. (m) Myler v. Fitzpatrick, 6 Madd., 

(/) Mulvany v. Dillon, 1 B. & B., 360 ; Davis y. Spurting, 1 R. &M., 64 ,-- 

409 ; Eyre v. Dolphin, 2 B. & B., 290. Maw v. Pearson, 28 Beav., 196. 

(ijr) Eyre v. Dolphin, 2 B. & B., 290. (») Portlock v. Gardner, 1 Hare, 

Ih) Oiddings v. Oiddings, 3 Ruas., W&; BodenhamY. Hoskyns,2'D.M.. G., 

241 ; James v. Dean, 11 Ves., 383 ; 903 ; Bridgman v. QUI, 24 Beav., 382 ;: 

Lawrence v. Maggs, 1 Eden, 453. Re Barney (1892), 2 Ch., 265; MArdle 

(i) Walley v. WalUy, 1 Vem., 484 ; v. Goughan (1903), I. R., 107. 

Lawrence v. Maggs, 1 Eden, 453 ; (o) Shamaldkone v. Akshimani, 36 

Rowley v. Ginnever (1897), 2 Ch., 503. Cal., 493. 

(i) Bowles v.StewaH,lSoh. &Lef., (p) Bulkley v. Wilford, 2 C. & F., 

209 ; Eyre v. Dolphin, 2 B. & B., 290. 102. 



Le(J. IV.J GIFT TO FIDUCIARY RELATION. 113 

wanting in what I conceive to be the duty of an attorney, if it 
happens that you get an advantage by that neglect, you shall not 
hold that advantage, but you shall be a trustee of the property for 
the benefit of that person who woxild have remained entitled to it, 
if you had known what you ought as an attorney to have known ; 
and not knowing it, because you ought to have known it, you shall 
not take advantage of your own ignorance. It is too dangerous 
to mankind, that those who are bound to advise, and who being 
bound to advise ought to be able to give sound and sufficient 
advice, it is too dangerous to allow that they shall ever take 
advantage of their own ignorance — of their own professional 
ignorance — to the prejudice of others."(a) 

When a barrister prepared a will for a friend, of which he was 
appointed executor, and in that capacity became entitled to the 
personal estate of the testator, he was decreed to hold it as a 
trustee for the next-of-kin. " The testator's intention," said Lord 
Chancellor Hart, " was not directed to his personal estate, and he 
thought he was only disposing of his real estate, it became the 
bounden duty of the defendant to have informed him, that if he 
made no disposition of his personal estate, the law, in consequence 
of his being the executor, would entitle him to retain it for his own 
benefit. He was bound to inquire of the testator, in plain and 
distinct terms, whether it was his will that the defendant should 

so retain the personal estate for his own benefit The 

defendant has stated that he did not know the rule of law which 
gives to an executor the undisposed-of residue. Be it so ; but in 
the administration of justice, what ought to result from that 
ignorance ? The testator relied on the defendant's knowledge of 
law as well as on his integrity. Will the avowal of ignorance of 
the law in the legal adviser justify the disinheriting of the testator's 
relations in favour of that adviser ?"(6) 

Courts of equity exercise jurisdiction to set aside voluntary 
gifts made to persons standing in a fiduciary relation to the Qjf^^ ^^ 
donor. The relief is granted upon the principle of public persons in 
pohcy, and applies to all the variety of relations in which fiduciary 
dominion may be exercised by one person over another, (c) capacity. 
For instance, if a legal, medical, or spiritual adviser by availing 
himself of his situation as such adviser, gains some pecuniary 

(a) And see (Se^raue v. Kinmn, Bea,t., and see Bulkley v. Wilford, 2 C. & F.^ 

157 ; Nanney v. Williams, 22 Beav., 102 ; Oarrelt v. Wilkinson, 2 DeG. &. 

452 ; Be Birchall, 44 L. T. N. S., 243 ; Sm., 244. 

Stokes V. Prance (1898), 1 Ch., 212. (c) Huguenin v. Basley, 14 Ves.,. 

As to duty of solicitor, see Powell v. 273 ; DerU v. Bennett, 4 M. & Cr., 277 ;. 

Powell (1900), 1 Ch., 243 ; Willis v. AUcard v. Skinner, 36 Ch. D. (C. A.), 

Barron (1902), A. C. (H. L.), 271; 145 ; Jforfe?/ v. ioagrfemon (1893), 1 Ch.„ 

fiosee* V. BisAoj)(1909), 2K. B. (C. A.), 736; Pushong v. Munia Halwani, 1 

390. B. L. R., A. C, 95. And see Indiaa 

(&) Segr'ave v. Kirwan, Beat., 157 ; Contract Act (IX of 1872), ss. 15—22. 

A, LT 8 



114 



ONUS OP PEOOF. 



[Lec. IV 



Voluntary 
gift where 
no fi duciary 
relation 
when set 
aside. 



advantage from the person whom he advises, he will be treated as a 
trustee, (a) 

A voluntary gift to a person, who does not stand in any 
fiduciary or confidential position towards the donor, will not 
be set aside if there was no fraud, surprise, or undue influence, 
and the donor acted of his own free wOl, however improvi- 
dent the gift may be. In Villiers v. Beawmontip), Lord 
Nottingham said, that if a man will impro"wdently bind 
himself up by a voluntary deed, and not reserve liberty 
to himself by a power of revocation, the Court will not loose the 
fetters he hath put upon himself, but he must lie down under his 
own folly ; for if the Court gave rehef in such a case, it would 
estabhsh the proposition that a man can make no voluntary dis- 
position of his estate, but by his will only, which would be absrurd. 
Prima facie such a gift is good, but it will be set aside if the donor 
can prove fraud, surprise, or undue influence, (c) 

The Indian Trusts Act enacts that "Where, by the exercise of 

undue influence, any advantage is gained in derogation of 

Act'T 8q"^ ^ *^® interests of another, the person gaining such advantage 

without consideration, or with notice that such influence has 

been exercised, must hold the advantage for the benefit of the 

person whose interests have been so prejudiced." 

Where the fiduciary relation exists, the onus of proving that the 
transaction is righteous is on the donee.(d) The Indian 
Evidence Act provides (s. Ill) that where there is a question 
as to the good faith of a transaction between parties, 
one of whom stands to the other in a position of active 
confidence, the burden of proving the good faith of the 
transaction is on the party who is in a position of active 
confidence. And the following illustrations are given : — (i) " The 
good faith of a sale by a client to an attorney is in question in a 
suit brought by the chent. The burden of proving the good faith 
of the transaction is on the attorney ; (ii) the good faith of a sale 
by a son just come of age to his father is in question in a suit 
brought by the son. The burden of proving the good faith of the 
transaction is on the father." 



Onus of 

proof 

where 

fiduciary 

relation 

exists. 



(a) See Act I of 1877, s. 2, illus, (6). 

(b) 1 Vern., 100. 

(c) Hunter v. Atkins, 3 M. & K., 
113; Taker v. Taker, 31 Beav., 629; 
Isrruiil v. Hafiz, 33 Cal., 773 P. C. (a gift 
by a mother to her daughter). 

{d) Qibsan v. Jeyes, 6 Ves., 266; 
Wright v. Vanderplank. 8 D. M. G., 
133; Hoghton v. Haghtan, 15 Beav., 
299 ; Caoke v. Lamotte, ibid, 234 ; 
Sharp V. Leach, 31 Beav., 491 ; 



Smith V. Kaji, 7 H. L. Cas., 780 ; 
Turner v. Callins, L. E., 7 Ch., 32^1 ; 
Raghunathji v. Varjiwandas. 8 Bom. 
L. R., 525 ; see also Boa Jina'bon 
V. Sha Kagar Valab, 11 Bom., 78; 
Hasanali v. Esmailjl, 9 Bom. L. R., 
006 ; Maliamed Buhsh v. Hosseni Bibi, 
1.? Cal., 684 ; Hakim Muhammad v. 
Nijiban, 20 All., 447 ; Ismail v. Hajiz, 
33 Gal,, 773 P. C. 



Lee. IV.] PARENT AND CHILD. 115 

Where th% fiduciary relation does not exist, a person who 
takes a benefit under a voluntary gift which is not subject 
to a power of revocation, has thrown upon him the burden does^noj* 
of proving that the gift was meant by the donor to be 
irrevocable. A gift not meant to be irrevocable, but not subject 
to a power of revocation, may be set aside at the instance of the 
donor, (a) Even where the matter appears to rest upon a good consi- 
deration, as where there is a sale, the Court will inquire into the 
circumstances, with a view to ascertain whether undue influence 
was exercised or hot.(&) 

If the donee is a person who exercises influence by 
means of his spiritual ascendency over the donor, the gift infl"e^e 
will be set aside, (c) 

The Court looks with suspicion upon gifts made by a child to a 
parent shortly after attaining majority, and such gifts will 
be set aside if there is any appearance of undue influence (-hiw" ^ 
having been exercised by the parent. Where a father who 
had advanced a son during his minority took a bond from the son 
on his attaining majority for a much greater amount than the 
sums advanced, the son being without means, the transaction was 
set aside ; Lord Northington saying : — " If the obligor gives a 
volxmtary bond, and never complains of any imposition or hardship 
in obtaining it, the Court will only postpone it to creditors, and not 
set it aside for other volunteers. Nay, if it be given with advice 
and deliberation, this Court will not set it aside for the obligor. 
But if a man gives a voluntary bond for more than he is 
able to pay, the transaction speaks weakness on the one side and a 
sort of imposition on the other."(d!) The Court will not interfere 
where the transaction is fair and reasonable, and no undue influence 
has been exercised, (e) The principles upon which the Court acts 
in transactions of this nature were thus stated by Lord Langdale 
in Archer v. Hudson.{f) " Nobody has ever asserted that there 
cannot be a pecuniary transaction between parent and child, the 
child being of age ; but. everybody will affirm in this Court, that if 
there be a pecuniary transaction between parent and child, just 
after the child attains the age of twenty-one years, and prior to 
what may be called a complete ' emancipation,' without any benefit 



(a) Wollaston' v. Tribe, L. R., 9 Eq., {d) Carpenter v. Harlot, 1 Eden., 

44. 338. 

(6) OJarlce v. Malpas, 31 Beav., 80 ; (e) Blackborn v. EdgeJev, I 

Baher v. Monk, 33 Beav., 419. P. Wms., 600, 606 ; Jenner v. Jenner, 

■ (c) Hugmnin v. Basleij, 14 Ves., 273 ; 2 DeG F. & J., 359 ; Baker v. Bradley, 

Norton v. Relly, 2 Eden., 286 ; Nottidge 7 D. M. G , 597. See Latshmi Doss v. 

V. Prince, 2 Giff., 246 ; Lyon v. Home, Roop Lai, 29 Mad., 1 ; on appeal, 30 

I.. R., 6 Eq., 655 ; Mannu Singh v. Mad., 169. 

Umadat Pandi, 12 All., 523 ; Murari v. (/) 7 Beav., 551, 560. 
SadJia Bhai, 1884, A. W. N.. 184. 



116 GUARDIAN AND WARD. [LCC. IV* 

proving to the child, the presumption is, that an ujfdue influence 
has been exercised to procure that liabiUty on the part of the child, 
and that it is the business and the duty of the party who endeavoura 
to maintain such a transaction, to show that that presumption is 
adequately rebutted ; and that it may be adequately rebutted is 
perfectly clear. This Court does not interfere to prevent an act 
even of bounty between parent and child, but it will take care 
(under the circumstances in which the parent and child are placed 
before the emancipation of the child) that such child is placed in 
such a position as will enable him to form an entirely free and 
unfettered judgment, independent altogether of any sort of 
control." 

The principles upon which the Court acts in dealing with. 

transactions between parent and child, will be apphed in 
Persons dealings between a minor who has recently attained his 

^parentis. majority, and a person who has stood towards him in loeo 

j)arentis.{a) 

So, gifts from a ward to a guardian made shortly after the 
ward's attaining majority will be set aside if there is any 
and wMd suspicion of undue influence on the part of the guardian. 

" Where," said Lord Hardwicke(6), " a man acts as guardian, 
or trustee in the nature of a guardian, for an infant, the Court is 
extremely watchful to prevent that person's taking any advantage 
immediately upon his ward or cestui que trust coming of age, and 
at the time of settling accounts or delivering up the trust, because 
an undue advantage may be taken. It would give an opportunity 
either by flattery or force, by good usage unfairly meant, or by bad 
usage imposed, to take such an advantage ; and therefore the 
principle of the Court is of the same nature with relief in this Court 
on the head of pubhc utility .... All depends upon public 
utihty ; and therefore the Court will not suffer it, though, perhaps, 
in a particular instance there may not be actual unfairness . . . 
The rule of the Court as to guardians is extremely strict, and in 
some cases does infer some hardship ; as where there has been ar 
great deal of trouble, and he has acted fairly and honestly, that 
yet he shall have no allowance ; but the Court has established that 
on great utility, and on necessity, and on this principle of humanity ; 
it is a debt of humanity that one man owes to another, as every 
man is liable to be in the same circumstances."(c) If, however, 



(a) Archer v. Hudson, 7 Beav., 551 ; Mahapatur v. Hurrykissen Malmpatur, 

Bevett r. Harvey, 1 S. & S., 502; Det- 15 S. D. A., 274, and the notes to 

mar v. Metropolitan and Provincial Huguenin v. Bashy, 2 Wh. & T., L. C, 

Bank, 1 IL & M., 641. See Guardian 585 ; Munna v. Vinayak, 28 L C, 861 ; 

and Wards Act (VIII of 1890), s. 20. Guardian and Wards Act (VIII of 

(6) Hylton v. Hylton, 2 Ves., 549. 1890), a. 20. 

(c) See also Bamkiasen Pajoshee 



Lee. IV.] GIFT TO LEGAL ADVISER. 117 

the relation of guardian and ward lias been completely determined, 
and the presumption of undue influence has been successfully 
Tebutted, a gift from the ward will be allowed to hold good, (a) 

A legal adviser, whether counsel, attorney, or vakeel, can 
take no benefit from his client while he is acting for him 
in a professional capacity, beyond his regular professional j^' j °dyiser. 
charges. (6) In order to support a gift from a legal 
adviser to his client, it must appear that the relation has been 
dissolved, (c) If it is endeavoured to make the gift good, by 
expressing that valuable consideration has been given by the 
legal adviser, evidence will be admissible to prove that the 
consideration is fictitious, (ci) 

If there is no suit pending, and no undue influence has been 
exercised by the legal adviser, a gift to him may be supported(e), 
and he may take a benefit under a will if it can be proved that 
"the testator acted freely. {/) 

In the class of cases we have just considered, undue influence 
is presumed to have been exerted until the contrary is proved, and 
the person benefited is bound to show that all the terms and condi- 
tions of the contract are fair, adequate, and reasonable. (51) 

The rule extends to all the relations in which dominion may be 
exercised by one person over another, even though no actual 
fiduciary relationship in the strictest sense of the words ^^g*" ° 
exists. Thus gifts by patients to medical attendants(fe), 
by a younger sister to an elder(i), by a woman to her intended 
husband(j), and gifts obtained by operating on the fears of 
Another(i), have been set aside. 

(a) Hatch v. Hatch, 9 Ves., 296 ; (1903), 1 Ch., 27. 

Hunter v. Atkins, 3 M. & K.., 113 ; (d) Tomson v. Judge, 3 Drew., 

Maharaj Singh Y. Maulvi Wali, 6 0. C, 306. 

252. _ (e) Oldham r. Hand, 2 Ves., 259 ; 

(6) Shamaldhone v. Akahimoni, 36 Harris v. Tremenheere, 15 Ves., 34 ; 

■Cal., 493 ; Moheshpur Cnal Co. v. Nuthoo Lall v. Buddree Pershad, 1 N. 

Jolindra Nath, 40 Cal., 386 ; Brojendra W. P., 1. 

V. Srimwtty Lukheymoney, 6 C. W. N., (/) Hindson v. Weatherill, 5 D. M. 

896 ; Bhai Oangabhai v. Bhagwandas, G., 301 ; Walker v. Smith, 29 Beav., 

29 Bora., 530 P. C. The managing 394. 

clerk in an attorney's office is in (g) Pushong v. Munia Halwani, 

"the same position ; Harivalabhados v. 1 B. L. R., A. C, 95 ;. Nuthoo Lall v. 

Bhai Jivanji, 20 Bom., 689 ; see also Buddree Pershad, 1 N. W. P., 1 ; and 

Hiralal v. Mt. Dhammo, 9 C. P. L. R., see ante p. 114. 

^5. (h) Dent v. Bennett, 4 My. & Cr., 

(c) Moore v. Prance, 9 Hare, 299 ; 269. 

Walker v. Smith, 29 Beav., 394 ; Ga/rd- (») Harvey r. Mount, 8 Beav., 439 ; 

ner v. Ennor, 35 Beav., 549 ; Brown v. but see Ismail v. Hafiz, 33 Cal., 773 

Kennedy, 4 D. 6. .1. & S., 217 ; Rujabai P. C. (mother and daughter). 

V. Ismail Ahmed, 7 B. H. C. R., O. (j) Page v. Home, 11 Beav., 227. 

C, 27 ; Pushong v. Munia Halwani, I {h) Williams v. Bayley, L. R., 1 H. 

B. L. R., A. C, 95 ; Wright v. Carter h., 200. 



118 GIFT IN EXPECTATION OF DEATH. [LeC. IV. 

A voluntary deed, which contains no power of revocation, 

executed in the expectation of immediate death, will be set 

pectation of aside, even though there has been no undue influence, if the 

death. Settlor did not intend that it should be operative in case he 

recovered, (a) 

The Court has power to relieve against strangers. " Who- 
g ever," said Wilmott, C. J.(b), " receives the gift, must take 

rangers. .^ tainted and infected with the undue influence and imposi- 
tion of the person procuring the gift ; his partitioning and canton- 
ing it out among his relations and friends will not purify the gift 
and protect it against the equity of the person imposed upon. Let 
the hand receiving it be ever so chaste, yet, if it comes through a 
polluted channel, the obligation of restitution will follow it."(c) 
But the Court will not interfere as against a bond fide purchaser 
without notice. (<Z) 

The principles upon which Courts of Equity act in setting 
aside voluntary gifts to persons standing in a fiduciary 
Principles relation to the donor were thus stated by Lord Brougham in 
Court acts. Hunter v. Atkins(e) : " There are certain relations known 
to the law as attorney, guardian, trustee ; if a person stand- 
ing in these relations to client, ward, or cestui que trust, takes a gift 
or makes a bargain, the proof lies upon him that he has dealt with 
the other party, the client, ward, &c., exactly as a stranger would 
have done, taking no advantage of his influence or knowledge, 
putting the other party on his guard, bringing everything to his 
knowledge which he himself knew. In short, the rule rightly 
considered is, that the person standing in such relation must, before 
he can take a gift, or even enter into a transaction, place himself 
exactly in the same position as a stranger would have been in, so- 
that he may gain no advantage whatever from his relation to the 
other party beyond what may be the natural and unavoidable 
consequence of kindness arising out of that relation. A client, 
for example, may naturally entertain a kindly feeling towards an 
attorney or solicitor by whose assistance he has long benefited ; 
and he may fairly and wisely desire to behefit him by a gift, or, 
without such intention being the predominating motive, he may 
wish to give him the advantage of a sale or a lease. No law that 
is tolerable among civilized men — men who have the benefits of 
civility without the evils of excessive refinement and overdone 
subtlety — can ever forbid such a transaction, provided the client 
be of mature age and of sound mind, and there be nothing to show 

{a) Forshawv. Wehby, 30 Bear., 2iZ. Govind, 28 Bom., 639 ; JoA» v. i)od- 

(6) Bridgetnan v. Green, Wilm., 58. well and Co. (1918) A. C- 563. 
(c) See Ranganayakamma v. Alwar (d) Blackie v. Clark, 15 Beav., 595 ; 

Chetti, 13 Mad., 214; Sital Prasad v. and see further the notes to Huguenin 

Parbhu, 10 All., 535; Kessowji v. v. Basley, 2 Vfh. & T., L. C, 556. 
Hurjivan, llBoia., 566; Ranganath t. (e) 3 M. & K., 135. 



Lee. IV.] BADGES OF FRAUD. 119 

that deception was practised, or that the attorney or solicitor 
availed himself of his situation to withhold any knowledge, or 
exercise any influence hurtful to others and advantageous to him- 
self. In a word, standing in the relation in which he stands to the 
other party, the proof lies upon him (whereas in the case of a 
stranger, it would lie on those who opposed him) to show that he 
has cut off, as it were, the connection which bound him to the party 
giving or contracting, and that nothing has happened which might 

not have happened had no such connection subsisted 

The rule, I think, cannot be laid down much more precisely than 
I have stated it, that where the known and defined relation of 
attorney and client, guardian and ward, trustee and cestui que 
trust, exists, the conduct of the party benefited must be such as to 
sever the connection, and to place him in the same circumstances 
in which a mere stranger would have stood, giving him no advant- 
age, save only whatever kindness or favour may have arisen out 
of the connection ; and that where the only relation between the 
parties is that of friendly habits, or habitual reliance on advice 
and assistance, accompanied with partial employment in doing 
some sort of -business, care must be taken that no undue advantage 
shall be made of the influence thus acquired. The limits of natural 
and often imavoidable kindness with its effects, and of imdue 
influence exercised or unfair advantage taken, cannot be more 
rigorously defined. Nor is it, perhaps, advisable that any strict 
rule shoidd be laid down — any precise line drawn. If it were stated 
that certain acts should be the only tests of undue influence, or 
that certain things should be required in order to rebut the presump- 
tion of it, such as the calling in a third person, how easy would it 
be for cunning men to avoid the one or protect themselves by 
means of the other, and so place their misdeeds beyond the denun- 
ciations of the law, and secure the fruits of them out of its reach ! 
If any one should say that a rule is thus recognized, which from it§ 
vagueness cannot be obeyed, because it cannot well be discerned, 
the answer is at hand. All men have the interpreter of it within 
their own breasts ; they know the extent of their influence, and 
are conscious whether or not they have taken advantage of it in a 
way which they would feel indignant that others similarly circum- 
stanced should do with regard to themselves. 

The circumstances of each case, therefore, are to be carefully 
examined and weighed, the general rule being of a kind necessarily 
so little capable of exact definition ; and on the result of the 
inquiry, we are to say — ^Has or has not an undue influence been 
exerted — ^an undue advantage taken ? " 

It has been held that a fictitious consideration insert- Badges of 
ed in the deed is a badge of fraud, (a) So, where there has fraud. 

(o) Bridgeman v. Oreen, 2 Ves., C, 104. See Twyne's Case, at p. 58, 
627 ; Gibson v. Bussell, 2 Y. & C. C. supra. 



120 ACQUIESCENCE. [LCC. IV. 

been concealment from those who ought naturally to have been 
made acquainted with the transaction, (a) But it is not necessary 
that there should have been such acts as these in order to enable 
the Court to interfere. The Court will inquire whether the grantor 
not only executed the deed voluntarily, but also whether he had 
a full laiowledge of the consequences of his act. (6) The mere fact 
that the deed was read over to him is not sufficient, it must be 
proved that he understood its nature, (c) And the case will be 
stronger against the donee when the deed was not prepared imder 
the donor's instructions and was not read over to him.(d) Where 
persons stand in a fiduciary relation to each other, the party 

benefited must be able to show that the donor had com- 
dent^'advice petent and independent advice, and the capacity of the 

donor is of importance, (e) 

When undue influence is proved, the deed may be set aside 

at the instance of the donor or grantor, or after his death. 

At whose q£ jjjg representatives or devisees. (/) If the donor or 

set aside. settlor himself requires the aid of the Court to transfer a 

fund in Court, which is the subject of the settlement, to 

the donee, the Court cannot refuse its assistance, whether the 

settlement may, or may not, be impeachable upon the ground of 

undue influence. (</) 

If the subject-matter of the gift can be traced into the posses- 
sion of third persons, it will be afEected by the fraud or undue 
influence which attached to the original transaction. (A) 

The cestui que trust, if competent to contract, must 
ce^ce?^' ^®^^ ^^® remedies within a reasonable time, otherwise he 

may be barred by acquiescence, (i) 



(a) Jevirs v. Jevers, 1 Bro. P. C, Rhodes v. Bates, L. R., 1 Ch., 252 ; 

272 ; Scrope v. Offley, ib., 276. Rujdbai \. lamail Ahmed, 7 B. H. C. 

(6) Huguenin v. Basley, 14 Ves., K., 0. C, 35 ; Fry v. Lane, 4 Ch. D., 

300; Pratt v. Barker, 4 Russ., 507; 312 ; iiZe,? v. 2'e»T!/(1895), 2 Q. B., 679, 

Toher v. Taker, 31 Beav., 629 ; Geresh C. A.; Raja Papamma Rao v. Sita- 

V. Bhuggobutfy, 13 Moo. I. A., 419; ramayya, 5 M.. L.J. ,224:; Raghunath v. 

BeJiari Lai v. Habiba, 8 All., 267 ; Parjivandas, 30 Bom., 578. 

Sudisht Lai v. Sheobarat, 7 Cal., 245 (/) Anderson v. Elsworth, 3 Giff., 

P. C. ; Annoda Mohun v. Bhuban 154. 

Mohini, 28 Cal., 546 P. C. (g) Re Metcalfe, 2 D. J. & S., 122. 

(c) Hoghton v. Hoghton, 15 Beav., (h) Bridgeman v. Oreen, 2 Ves., 627 ; 
278 ; Anderson v. Elsworth, 3 Giff., 154 ; Huguenin v. Basley, 14 Ves., 274. In 
Shambati v. Jago Bibi, 29 Cal., 749 P. these cases, however, the persons actu- 
C. ; Sham Koer v. Ddh Koer, 29 Cal., ally in possession or enjoyment of the 
664, P. C. ; Sajjad v. Nawab Wazir Ali, property so obtained were not pur- 
39 I. A., 156 ; Sumsuddin v. Abdul, 31 chasers for value without notice, but 
Bom., 165. mere volunteers. 

(d) Glarkson v. Hanway, 2 P. W., (»") Clegg v. Edmondson, 8 D. M. G., 
203. 787 ; Peddamuthulaty v. Timma Beddy, 

(e) Griffith v. Robins, 3 Madd., 191 ; 2 M. H. C. R., 270. 
Baker v. Bradley, 7 D. M. G., 597; 



Lee. IV.] 



LACHES. 



121 



Confirma- 
tion and 
acquies- 
cence. 



Although the evidence may show the existence of undue 
influence at the time of the settlement or gift, it will not 
be set aside, if the settlor has, during a course of years and 
in several transactions, acted upon it and treated it as in 
all respects valid, (a) But acquiescence must be shown to 
be after the discovery of the right to impeach a transaction(6), in 
which case it will preclude the parties acquiescing from raising 
objections afterwards.(c) And where a client dealing with his 
solicitor executes a voidable instrument, and afterwards chooses 
to confirm it by will, the confirmation will be efEectual.((Z) In 
order that acquiescence or confirmation may be valid, there must 
be no continuing influence, as otherwise there would be no free 
agency on which to found acquiescence, (e) And where a confi- 
dential and fiduciary relation is shown to exist, its continuance 
will be presumed, unless there is direct evidence of its termi- 
nation. (/) 

Laches and considerable delay in applying to the Court 
to set aside an instrument impeachable by reason of undue 
influence will, in general, be a bar to relief. (5^) 

For a bar by delay or acquiescence, there must be some conduct 
amounting to confirmation of the transaction(/i), and it must be 
shown that he knew that he had the right or being a free agent at 
the time, deliberately determined not to inquire what his rights 
were or to act upon them.(i) Even after the lapse of the period 
of limitation, a defendant is entitled by way of equitable defence 
to plead fraud or undue influence in answer to an action to enforce 
the transaction. (_7) 

Trustees are bound to protect the interests of their cestuis 
que trustent, and are justified, when they are called upon to transfer 
a fund pursuant to an arrangement between persons standing in a 
fiduciary relation to one another, in taking every precaution to 
ascertain that no fraud or undue influence has been exercised by 
the person to whom the fund is to be transferred. If, however, 



Laches, 
Costs. 



(o) Brown v. Garter, 5 Ves., 862 ; 
Wright v. Vanderplank, 2 K. & J., 1 ; 
afid., 2 Jur., N. S., 599 ; Dimsdale v. 
Dimsdale, 3 De., 556 ; Jarratt v. Aldam, 
L. R., 9 Eq., 463. 

(6) King v. Savery, 5 H. L. Cas., 
«27. 

(c) Skottowe V. Williams, 3 D. P. & 
J., 535. 

(d) Stump V. Gaby, 2 D. M. G., 
623: 

(e) Hatch v. Hatch, 9 Ves., 292; 
■Sharp V. Leach, 31 Beav., 491. 



(/) Bhodea v. Bates, L. R., 1 Ch., 
252. 

{g) Barwell v. Barwell, 34 Beav., 
371 ; Skottowe v. WiUiams, 3 D. F. & J., 
535 ; see Proctor v. Bobinson, 35 Beav., 
329 ; Turner v. Collins, L. R., 7 Ch., 
329. 

(A) Allcard v. Skinner, 36 C8i. D., 
145. 

(i) Lakshmi Dos v. Boop Lai, 30 
Mad., 169. 

(j) Ibid. Banganath v. Oovind, 28 
Bom., 639. 



122 COSTS. [Lee. IV. 

they act capriciously, or, having ascertaiaed that the transaction 
is not one which the Court would set aside, they persist in refusing 
to transfer, and so render a suit necessary, they will be liable to 
pay costs, (a) 



(o) See Firmin v. Pulham, 2 DeG. King v. King, 3 Jur., N. S., 609; ife 
& S., 99 ; Ee Cater, 25 Beav., 361 ; Metcalfe, 2 D. J. & S., 122. 



LECTURE V. 

* 

PARTIES ttp THE TRUST. 

Acceptance ot trust — Indian ^'riisty. Act, s. 10 — Trustees also executors — 
Acting as agent — Executoi- of an executor — Renunciation of probate — 
Partial acceptance — Recitals' in deed as to state of trust — Trustee in 
fact — Liability of trustee — By whom trust may be created — Greueral 
rule — ■ The Sovereign — Corporations — Prizes of war — ■ Infants — 
Married women — Stridhan — Alien — Persons convicted of certain 
offences — Grantee under sanad — Who may be » cestui que trust ■ — The 
Government — Corporations — Aliens — Who may be a truBtee — Persons 
■ under disability — Aliens — The Sovereign — Not the Government of 
India — Corporation — Presidency banks — Married women — Insolvent — 
Cesluis que trusient — Relatives — Number of trustees — Disclaimer — 
How made — Gift to trustee or executor. 

A TRUST is accepted by any words or acts of the trustee 
indicating with reasonable certainty such acceptance. Acceptance 
A trustee may accept the trust by signing the trust-deed of trust, 
when there is one(a), or, in the case of a will, by express Indian Trusts 
declaration of his assent. (&) Prima facie he is assumed to "<='-• i°' 
assent to a devise(c), and his acceptance may be implied from his 
neglect to disclaim for a long time, such as twenty years((i), even 
though he has not acted in the trust, (e) And acceptance may be 
implied from acts of a trustee in relation to the trust-estate. (/) 
It is difficult to lay down any general rule as to what acts of a 
trustee will amount to acceptance. An executor, who takes out 
probate of the will of his testator, thereby accepts the office and 
becomes responsible for any loss incurred by the acts of his co- 
executor(^) ; he cannot escape responsibility on the ground that 
he has taken no active part in the administration of the estate. (A) 
So if he interferes with the assets of the testator, he will be liable 
even though he does not take out probate.(i) Where an executor 



(a) Buckeridge v. Glasse, 1 Cr. & Ph., 
131. 

(6) Doe V. Harris, 16 M. & W., 517. 

(c) Ibid ; Lord Montford v. Lord 
Gadogan, 19 Ves., 638. 

{d) Wise V. Wise, 2 J. & Lat., 402. 

(c) See Re Vniacke, 1 J. & Lat., 1 ; 
In re Needham, ib., 34. 

(/ ) Lord Montford v. Lord Gadogan, 
supra (an action was brought by the 
trustee on the footing of the trust). 

(g) Mucklow V. Fuller, Jac, 198 ; 



Booth V. Booth, 1 Beav., 135 ; Williams 
V. Nixon, 2 Beav., 472 ; Ward v. Butler, 
2 Moll., 533 ; Scully v. Delany, 2 Ir. 
Eq. Rep., 165. 

(A) Styles v. Guy, 1 Mac. & G,, 431. 

(i) Re Steven (1897), I Ch., 422; 
Graham v. Hill, 3 Hill's MSS., 239, 
cited in Ghurchill v. Lady Hobson, 
1 P. Wms., 241 (w) ; WhUe v. Barton, 
18 Beav., 192 ; Garberry v. Gody, I Ir. 
Rep, Eq., 76 ; Gohildas v. Valibai, 
15 Bom. L. R., 343. 



124 ACCEPTANCE OF THE OFFICE. [LCC. V. 

signed a letter requesting payment by debtors to the estate, or 
where a co-executor who had not proved, after the death of the 
executor who had proved, gave a power-of-attomey to sell a small 
part of the testator's assets, which was not acted upon, and had 
not further intermeddled, it was held that he had accepted the 
office, (a) So the joining in an assignment of a lease, for the pur- 
pose of passing the legal estate, has been considered to be of itself 
sufficient evidence that the executor had accepted and acted in the 
trusts of the will(6) : and an executor will be Uable if he exercises 
acts of authority or ownership over the testator's estate, (c) 

Trustees I^ executors are also appointed trustees, taking out 

also exe- probate amoimts to an acceptance of the trusteeship as well 

cutors. ag of the executorship, (c?) 

If a trustee under a will does not expressly accept, but receives 

the rents and profits of the trust-property, he cannot escape 

agentf ^^ from liability to account, on the ground that he acted merely 

as agent or factor, (e) In Lowry v. Fulton(f) a trustee who 

acted as agent, and who had not proved, was held not to have 

accepted the trust ; but that was a peculiar case, and cannot be 

considered as an authority against the general rule.(flr) 

According to English law, an executor who takes probate 
ofan^exe- °^ *^® ^^ ^ ^" executor, becomes executor of the will of 
cutor. the first testator, and cannot renounce probate of the first 

will, and take probate of the second.(A) 

But this is not the law as regards persons governed by the 
Succession Act or the Probate and Administration Act, 1881. (i) 

Renuncia- Instead of accepting a trust, the intended trustee may, 

tion of within a reasonable period, disclaim it and such disclaimer 

probate. gjjaH prevent the trust-property from vesting in him.(j ) 



(o) Cummins V. Cummins, 8 Ir. Eq. 522; Montgomery v. Johnson, 11 Ir. 

Rep., 723; see also Doyle v. Blake, Eq. Bep., 476 ; Doe v. JBTom*, 16 M. & 

2 Sch. & Lef., 231 ; Malzy v. Edge, 2 W-, 517. 

Jur., N. S., 80. (/) 9 Sim,, 11.5. 

(6) Vrch V. Walker, 3 My. & Or., (g) See further as to acts of acoept- 

702. ance, Lewin on Trusts, Ch. XI. 

(c) James v. Frearson, 1 Y. & 0. C. {h) In the Ooods of Perry, 2 Curt., 

C, 375 (this was a ease of a trust for 655 ; Brooke v. Haynes, L. E., 6 Eq.. 

sale) ; but see Orr v. Newton, 2 Cox, 25. In the Ooods of Delacour, 9 Ir, 

274, where Lord Camden refused to R. Eq., 86 ; In the Ooods of Griffin, 

imply acceptance under the peculiar 2 Ir. R. Eq., 320. 

circumstances. (i) Act X of 1865, s. 229 ; Act V of 

{d) Muchlow V. Fuller, Jac, 198; 1881,. s. 19; and see DeSouza v. 

Booth V. Booth, 1 Beav., 125; Williams Secretary of State, 12 B. L. R., 423. 

V. Nixon, 2 Beav., 472 ; Kandasami See also Runchordas r. Parvatttai, 23 

Chetti V. Murugappa ChHti, 16 M. L. Bom., 725, P. C. ; Narasimuluv. Oolam 

T., 547 : 26 I. C, 472. Hussain, 16 Mad., 72. 

(e) Gonynghamv.Gonyngham,iyes., (j) Indian Trusts Act, s. 10. 



Lee. V. ] ACCEPTANCE OF THE OFFICE. 125 

The renunciation of probate by a person named as executor 
and trustee, is not in itself a disclaimer of the trust, but it is one 
circumstance of evidence, and if there be no proof of his ever having 
acted, the Court, after a long lapse of time, as sixty years, will 
presume a disclaimer, (a) Where real and personal estate was 
devised and bequeathed to B, upon trust, for sale and conversion, 
and upon further trusts for the heir-at-law of the testator abso- 
lutely, and B renounced probate, and died three years afterwards 
without having disclaimed the trusts, it was held, that he must be 
taken to have intended to disclaim them when he renounced 
probate. (6) 

Where a person named as a trustee refused to act, but only 
took the trust-deed into his possession for safe custody, until some 
one could be found to undertake the trust, it was held, that there 
was not enough to charge him.(c) 

If the instrument of trust contains distinct and separate 
trusts, and a trustee is appointed to execute all the trusts, 
he cannot accept some and disclaim the others, but must g™'^' 
accept all or disclaim all.(d) 

Although the general rule is, that if a trustee acts in the trust, 
or intermeddles with the trust-property, he will be held to have 
accepted the trust, yet he may show that acts which apparently 
show an acceptance are referrible to some other ground, (e) But 
he cannot so act with reference to a trust-fund as to leave himself 
at liberty to say afterwards, either that he did, or did not, act as 
trustee. (/) Parol evidence is admissible upon the question of 
acceptance or non-acceptance of the trust, (gr) 

If the instrument creating the trust contains recitals speci- 
fjdng the trust-property, the trustees should, as a matter of r ■(■ i ■ 
precaution, ascertain that the recitals are correct, for other- deed as to 
wise they may be held liable for the property mentioned, state of 
But they wiU not be estopped from averring against, or *r"=t- 
offering evidence to controvert, a recital in the deeds contrary to 
the fact, which has been introduced into the deed by mistake of 
fact, and not through their own fraud or deception. (^) In Fenwich 

(a) M'Kenna v. Eager, 91. R. G. h. , 702; Be Lord and Fullerton (1896), 

79 : and see Earl Oranville v. M'Neile, 1 Ch. (0. A.), 228. 
7 Hare, lfi6.' (In this case the third (e) Stacey v. Elph, 1 M. & K., 195"; 

executor is said to have 'declined,' Dovev. Everard,lit,. &M.,231;Lovir]/ 

but there seems to be no difEerence in v. Fulton, 9 Sim. ,118. 
fact between ' declining ' and 're- ( / ) Gonyngham v. Conyngham, 

nounoing.') 1 Ves., 522 ; Stacey v. Elph, 1 M. & K., 

(6) In re Oordon; Roberta v. 195. 
Gordon, L. R., 6 0. D., 531. See also {g) James v. Frearson, 1 Y. & C. C. 

Be Boucherett (1908), 1 Ch., 180. C, 370. 

(e) Evans v. John, i Beav., 35. (ft) Brooke v. Eaynes, L. R., 6 Eq., 

{d) Vrch V. Walker, 3 My. & Cr.. 25., 



126 ACCEPTANCE OF THE OFFICE. [LeC. V. 

V. Greenwell(a) Lord Langdale said : " A doubt has been raiised as 
to whether Miss Cuthbertson possessed the £5,000 stock at the 
time of the marriage. Now I cannot say, that the trustees are 
bound by the recital of that fact contained in the deed ; we have 
had so many instances of parties representing that they were 
entitled to particular property, and which representation has 
afterwards turned out to be wholly untrue, that it would be unjust 
and dangerous to bind third parties by such representations, and 
I am not aware that it has ever been held, that trustees are bound 
by the representations of parties about to be married of the state 
of their property. I do not, therefore, accede to the argument 
that the recital alone binds the trustees."(6) 

A person may become a trustee in fact though not of right, 

and if he becomes possessed of a trust-fund with notice of 

ScT*^^ '" *^^ *™®*' ^® '^ ^® bound by it.(c) The representatives 

of a deceased trustee will incur personal liability by paying 

away the residue of their testator's estate, unless under an order of 

Court, if afterwards a debt is discovered to which it is Uable, though 

they had no notice, (dl) And if property has been distributed among 

the legatees of a person who has committed a breach of trust, 

though in ignorance of this fact, those who are damnified by the 

breach of trust may recover from the legatees, (e) 

When executors have made an assignment on the appointment 
of a new trustee, they lose their character of executors and become 
trustees only.(/) And an executor, to whom a legacy is given 
upon trust, ceases to hold it as executor, from the time he has 
appropriated it to the purposes of the trust, (g^) 

The liability of trustees for loss to the trust estate is the 
of^rustee same, whether the acceptance of the trust has been express, 

or is imphed by a Court of equity from their acts.(^) 



(a) 10 Beav., 418. of time ; Ridgway v. Newstead, 3 DeG. 

(6) And see Oore v. Bowser, 3 Sm. & F. & J., 474 ; Blake v. Gale, 31 Ch. D.. 

Giff., 6 ; Siory v. Gape, 2 Jur., N, S., 196 ; 32 Ch. D. (C. A.), 571 ; Leaky v. 

706. De Moleyns (1896), 1 I. R., 206. 

(c) Rackham v. Siddal, 1 Mao. & G., (/) Smith v. Smith, 1 Dr. & S., 384. 
607 ; Hennessey v. Bray, 33 Beav., 96 ; See Act X of 1865, ss. 316—326 ; Act V 
Yardley v. Holland, 20 L. R. Eq., 428 ; of 1881, ss. 135—145. 

Exparte Norris, 4 L. R. Ch. App., (g) Phillipo v. Munnings, 2 My. & 

280 ; Lyell v. Kennedy, 14 App. Cas., Cr., 309 ; Dix v. Burford, 19 Beav., 

437. 409 ; Byrchall v. Bradford, 6 Mad., 13 ; 

(d) Knatchbull v. Fearnhead, 3 My. Exparte Dover, 5 Sim., 500; Re Smith, 
&Ct.,122; Waller Y. Barrett, 24 Beav., 42 Ch. B., 302; Re Tlmmis (1902), 
413. 1 Ch., 176. 

(c) March v. Russell, 3 My. & Cr., (h) Lord Montford v. Lord Cadogan, 

31 ; Underwood v. Hatton, 5 Beav., 38. 19 Ves., 638. As to the nature of the 

It may be otherwise if the plaintiff has debt created in England, see Lewin, 

been lying by while the rights of the 12th Edn., 229. 
defendants have been varied by lapse 



Lee. v.] 



WHO MAY CREATE A TRUST. 



127 



We have now to consider by whom a trust may be trusTmay 



be created. 
General rule. 



created 

The Indian Trusts Act enacts that " a trust may be created — 

(a) by every person competent to contract, and, 

(6) with the permission of a principal Civil Court of original 
jurisdiction, by or on behalf of a minor ; 

but subject in each case to the law for the time being in force 
as to the circumstances and extent in and to which the author of 
the trust may dispose of the trust-property." 

The Indian Contract Act(a) provides that — 

" Every person is competent to contract who is of the age of majority 
according to the law to which he is subject, and who is of sound mind, and 
is not disqualified from contracting by any law to which he is subject : "(6) 

And a person is said to be of sound mind for the purpose of 
making a contract if, at the time when he makes it, — 

" He is capable of understanding it, and of forming a rational judgment 
as to its eifect upon his interests. A person who is usually of unsound mind, 
but occasionally of sound mind, may make a contract when he is of sound 
mind. A person who is usually of sound mind, but occasionally of unsound 
mind, may not make a contract when he is of unsound mind."{c) 

The Act contains the following illustrations : — 

" A patient in a lunatic asylum, who is at intervals of sound mind, may 
contract during those intervals. 

" A sane man who is delirious from fever, or who is so drunk that he 
cannot understand the terms of a contract, or form a rational judgment as 
to its effect on his interests, cannot contract whilst such delirium or drunken- 
ness '. 



The Sovereign, as to his private property, may, by Letters 
Patent, grant it to one person upon trust for another(ci) ; 
and the Government of India, as it has the power of TheSover- 
disposing of public property, may convey such property to 
trustees if it think -fit. 

Corporate bodies may create trusts. They have the right to 
alienate the property vested in them, and in consequence 
may vest it in a trustee, (e) This right has been taken '"■p°''^ '°"s. 
away in England under the Statute of 5 and 6 Wm. IV, c. 76(/) ; but 



(a) See also Transfer of Property 
Act (II of 1882), s. 7 ; and Indian 
Sucoession Act (X of 1865), s. 46. 

(6) Act IX of 1872, s. 11. 

(c) Ibid., s. 12. 

[d) The will of a Sovereign must be 
in writing and under the Sign Manual ; 
39 & 40 Geo. Ill, o. 88, s. 10. But the 
Probate Court has no jurisdiction ; In 



Ihe Goods of His late Majesty Oeo. 
Ill, 3 Sev. & Tr., 199. 

(e) See Transfer of Property Act 
(IV of 1882), s. 7 ; and General Clauses 
Act (X of 1897), s. 3 (39) : Person 
includes a Corporation. 

(/) This statute has been repealed 
and superseded by the Municipal Cor- 
porations Act, 1882 (45 & 46 Vic, ^. 50). 



Married 
women. 



128 MARRIED WOMEN. [LCC. V. 

as no similar Statute exists in this country, I apprehend that the 
law as it stood before the Statute(a) would be enforced here. 

Prizes of war vest in the Sovereign, and are commonly, by 

the Royal Warrant, granted to trustees, upon trust to 

^nzes of distribute in a prescribed mode among the captors ; but 

an instrument of this kind is held not to vest an interest 

in the cestuis que trustent, which they can enforce in equity, but 

it may be at any time revoked or varied at the pleasure of the 

Sovereign before the general distribution. (6) 

An infant, as we have seen, cannot contract, and therefore 
J cannot create a trust by any declaration during minority, 

nor can he create a trust by will.(c) 

Married women subject to the Indian Succession Act (X of 
1865) may create trusts. Section 4 of the Act provides that 
no person shall by marriage acquire any interest in the pro- 
perty of the person whom he or she marries, nor become 
incapable of doing any act in respect of his or her own property 
which he or she could have done if unmarried. This section, so far 
as regards property, abolishes, by implication, the doctrine of unity 
of persons between husband and wife.((?) So far as the property is 
concerned, therefore, the wife has as much control over it as if 
she were unmarried. This section does not apply to Hindus, 
Mahomedans, Buddhists, Sikhs or Jains, (e) By the Married 
Women's Property Act (III of 1874), s. 4;- 

" The wages and earnings of any married woman acquired or gained 
by her, after the passing of the Act, in any employment, occupation, or 
trade carried ou by her, and not by her husband, and also any money or 
other property so acquired by her through the exercise of any literary, 
artistic, or scientific skill, and all savings from, and investments of, such 
wages, earnings, and property, shall be deemed to be her separate property, 
and her receipts alone shall be good discharges for such wages, earnings, 
and property." 

And she may, therefore, create a trust in respect of such 
property. This Act does not apply to Hindus, Mahomedans, 
Buddhists, Sikhs, or Jains.(/) 



(a) Mayor of Colchester v. Lowten, By sack v. Hurrosoondery, 2 M. Dig., 

1 V. & B., 226 ; Evan v. The Corpora- 198 (n) ; Hardwari v. Oomi, 33 All., 

tion of Avon, 29 Beav., 144. 525. 

(6) Aleaxinder v. The Duke of (d) Proby v. Proby, I. L. R., 6 Cal., 

Wellington, 2 R. & M., 35 ; Kinlock v. 357. See also Natall v. Natall, 9 Mad., 

Secretary of State for India in Council, 12 ; W. 0. Mayhew v. Sarah, 19 Bom., 

L. R., 15, C. D., 1. ■ As to the execu- 293 ; A. v. B., 21 Bom., 77 ; Thomas 

tion of the trust by the agency of v. Thomas, 23 Cal., 913. 

persons deputed by the principals, see (e) Act III of 1874, s. 2. 

Tarragona, 2 Dod's Adm. Rep., 487. (/) Ibid 

(c) Act X of 1865, s. 46 ; Cosainath 



Lee. v.] MARRIED WOMEN. 129 

With regard to Hindus, a married woman may create a trust 
of her stridhan, or any other property which is absolutely at 
her own disposal, as she can devise such property, (a) But " ^"' 
she cannot devise property inherited from males, since her interest 
in it ceases at her death, and therefore she cannot create a trust 
of such property to continue after her death, though she may 
create a trust of her hfe-interest. 

According to EngUsh law, an ahen might always have acquired 
real estate, whether freeholds or chattels, by purchases, 
though he could not take it by operation of law, as by " 

descent or jure mariti ; and if he purchased it, he might have held 
it until office found, but could not give an alienee a better title than 
he had himself. An alien, therefore, could only create a trust of 
real estate until the Crown stepped in. As to personal estate, an 
alien friend might, although an ahen enemy could not, be the lawful 
owner of chattels personal, and might exercise the ordinary rights 
of proprietorship over them, and consequently create a trust. Now 
by the Naturalisation Act (1870), real and personal property of 
every description can be acquired, he'd and disposed of by an alien 
in the same manner in all respects as by a natural-born British 
subject. (6) The English law relating to ahens has not been intro- 
duced into India, and aliens here may acquire property freely, and 
deal with it as if they were British subjects, (c) 

In some cases the property of persons convicted of certain 
ofEences is Uable to forfeiture. In every such case the p 
offender is incapable of acquiring any property, except convicted 
for the benefit of Government, until he has undergone the of certain 
punishment awarded, or the punishment to which it shall offences, 
have been commuted, or until he shall have been pardoned. 
Whenever any person is convicted of an offence pimishable with 
death, the Court may adjudge that all his property, movuable and 
inunoveable, shall be forfeited to Government ; and whenever any 
person is convicted of any offence for which he shall be transported 
or sentenced to imprisonment for a term of seven years or upwards, 
the Court may adjudge that the rents and profits of all his moveable 
and immoveable estate during the period of his transportation or 
imprisonment shall be forfeited to Government, subject to such 
provision for his family and dependants as the Government may 
think fit to allow during such period, (ci) 

A sentence of forfeiture is confined to cases of aggravated 
crimes, and mostly where the safety of the State or the pubhc has 

(o) See Mayne's Hindu Law and (c) See Mayor of Lyons v. East 

Usage, 8th Ed., 920; and Act X, of India Co., \ Mco. I. A., 175; Sarkies 

1865, s. 46, expl. 1 ; Teen Cowrie v. v. 8m. ProsonnoTriOyee Dossee, 6 Cal. 

Denanath, 3 W. E. 0. E., 49. 79 1. 

(6) 33 Vict. c. 14. (d) Act XLV of IStO, ss. 61, 62. 

A, LT 9 



130 GRANTEE UNDER SANAD. [LeC. V. 

been affected. (a) In the case of a prisoner sentenced to death, 
such an order is useless, for a forfeiture of ancestral property 
maintains only during the life of the convict. (6) Before passing 
such sentence, the courts must make a careful inquiry as to the 
amount and nature of the property affected and as to the persons 
whose right as heirs would be thereby superseded in favour of the 
Government. The interests of widows and children need a special 
provision, (c) 

In certain cases the forfeiture of property necessarily follows 
conviction. Any person who wages war against the Queen, or 
attempts to wage such war(ci), or abets the waging of such war(e), 
or collects men, arms, or ammunition, or otherwise prepare; to 
wage war with the intention of either waging, or being prepared 
to wage, war against the Queen, forfeits all his property in addition 
to any other punishment to which he may be sentenced.(/ ) 

There is another class of offences where the forfeiture of 
specific property may form part of the punishment awarded. 
When offenders commit, or prepare to commit, depredation on the 
territories of any power at peace with the Queen, or receive property 
with the knowledge that it has been taken in waging war, or com- 
mitting depredations on a power at peace with the Queen (g) ; or if 
a public officer buys property which he is forbidden to buy, the 
specific property may be forfeited. (A) 

No trust can, therefore, be created of property which may be 
forfeited if the Government chooses to exercise its rights ; and, of 
course, no trust can be created where forfeiture necessarily follows 
the conviction. 

Although a sanad granted by the Government of India, sub- 
sequent to the proclamation of March, 1858, of an estate in 
Grantee Oudh, confers an absolute legal title on the grantee, such 

sanad. grantee may, nevertheless, by an express declaration of trust, 

or by an agreement to hold in trust, constitute himself a 
trustee of the estate for a third party, (i) 

(a) B. V. Mahomed, U W. R., Ir., treason; E. v. Lyruih (1903), 1 K. 

17 ; R. V. Amritlal, 29 All., 25 ; Oaya B., 444. 

Ptaiod V. Emp., 36 All, 395. (/) Aot XLV of 1860, as. 121, 122. 

(6) Magharsingh v. B., 7 Or., L. J., \g) Ibid., as. 126, 127. 

349. (h) Ibid , a. 169. 

(c) Shdfm Singh v. Secretary of (i) Th%kur Shere Bahadur Singh v. 
State for India, 18 P. R. Civil, 1908, Thahurain Dariao Kuar, 3 Cal., 645 ; 
F. B. ; Maghar Singh, v. R., supra. Thukrain Sookraj v. The Oovem- 

(d) See Barindra v. R., 37 Cal., ment of India, 14 Moo. I. A., 112; 
467 ; R. V. Savarkxr, 34 Bom., 394. The widow of Shunkar Sahai v. Raja 

(e) R. V. 8avark%r, supra ; Paw Kashi Pershad, 4 I. A., 198 ; Hardeo 
Thin V. R; 14 Cr. L. J., 514. Re Buxv. Jawahif,3 Cal., 522 iRamanund 
Calit Mohan, 38 Cal., 559. Aiding v. Anant Bahadur Singh, 8 Cal., 769 ; 
King's enemies in a foreign country is Haidar Ali v. Nawab Ali Khan, 17 Cal., 
sufficient to support a charge of 311. 



Lee. V.j WHO MAY BE A TRUSTEE. 131 

A trast may be created in favour of any person, or body of 
persons, so long as the purpose is lawful, (a) 

Who may 
The Government may be a cestui que trust.{b) be a cestui 

que trust. 
In England a trust of lands cannot be limited to a j^ie Gov- 
corporation without a heense from the Crown.(c) But as ernment. 
the Mortmain Acts do not apply to India((i), apparently a Corpora- 
corporation in this country may be a cestui que trust. '°"^" 

An aUen also may be a cestui que trust.{e) • Aliens. 

Every person capable of holding property may be a trustee ; 
but, where the trxist involves the exercise of discretion, he cannot 
execute it unless he is competent to contract. 

Any person may be a trustee, even an infant, or a person of 
unsound mind, if the trust is purely passive, and does not 
require the exercise of prudence and discretion. For ^^°t™^f 
instance, a discretionary trust for sale cannot be exercised Persons 
by an infant, for an infant is not a person competent to under dis- 
contract.(/) In King v. Bellord(g), a testator devised f^^}^^^\ 
estates upon trusts, requiring discretion as to the ex- ^^^ g_ ^^ 
pediency, as to the time, and as to the manner of a sale, 
to three persons, one of whom was an infant and it was held, that 
a contract of sale entered into by these three trustees was not a 
valid contract which could be specifically performed. " There can 
be no doubt upon the authorities from the earhest times," said 
Wood, V. C, " that if a man by his wiU gives an infant a simple 
power of sale without an interest the infant may exercise it. AU 
the decisions on the subject are referred to by Lord St. Leonards 
in his work on ' Powers ' and I need not discuss them minutely. 
They all tiirn on the execution of powers, and there is not a 
single authority upon the question whether an infant can sell an 
estate devised to him upon trust for sale. There is an opinion of 
Mr. Preston, mentioned without disapproval by Lord St. Leonards, 
that an infant can exercise a power, even though it be coupled with 
an interest ; but that is very different from selling an estate vested 
in an infant by a devise in fee. 



(a) Indian Trusts Act, s. 9. (e) See Lewu, 12th Edn., 46. 

(6) See as to trusts in favour of the (/) Act IX of 1872, s. 11. See 

Sovereign, Lewin, 12th Edn, 44. Hearle v. Oreenbanle, 3 Atk., 712; 

(c) Lewln, 12th Edn., 45. Sockett v. Wray, 4 B. C. C, 486 ; 

(d) Mayor of Lyons v. The East Grange v. Tiving, 0. Bridg., 108. A 
India Co., 1 Moo. I. A., 175 ; Sarh'es v. minor cannot be a trustee of a public 
Prosonnomoyee Dossee, 6 Cal., 794 ; trust ; Muhammad Nasim v. Muhim- 
Mithibai v. Limji, 5 Bom., 506 ; mad Ahmad, 27 I. C, 389. 
Broughton v. Mercer, 14 B. L. R. (0. C. (ff) 1 H. & M., 343. 

J.), 442. 



132 WHO MAY BE A TRUSTEE. [LcC. V. 

" It is to be observed that all the cases relied on with reference 
to powers, have gone upon the principle that the infant is merely 
the instrument by whose hands the testator or donor acts. The 
donor, it is said, may use any hand, however weak, to carry out 
his intentions. This principle fails altogether to reach the case of 
a devise in trust to an infant. It is not in the power of the author 
of a trust to confer upon an infant a capacity in himself which the 
law does not give him, although he may make the infant his hand, 
his agent, to execute his purpose. He cannot give an estate to an 
infant, and say that he may sell it when the law says that he cannot 
do so." 

It is not advisable, however, to appoint an infant as trustee. 
The only acts which he can perform are such as are purely minis- 
terial, and he cannot be made to account for money received by 
him as trustee during his minority, (a) Infants, however, have no 
privilege to cheat men(6) ; and a Court of Equity has jurisdiction 
to make an infant answerable, on his attaining majority, for a 
fraud committed by him during his minority, though it is not easy 
to determine in what cases the Court will thus exert itself, (c) 

From the great inconveniences attending the appointment of 
an infant as trustee, there arises a strong presumption, wherever 
property is given to an infant, that he is intended to take it not as 
trustee but beneficially. ((^) 

An alien may be a trustee of either moveable or immoveable 
property. In England, before the Statute 33 Vict., c. 14, 
'^"^' an alien could not effectually be a trustee in respect of free- 

holds, or chattels real, for the poUcy of the law would not allow an 
alien to sue, or be sued, to the prejudice of the Crown touching lands 
in any Court of law or equity ; and on inquisition found, the legal 
estate in the property vested by forfeiture in the Crown, (e) But this 
did not apply to personal property. (/) In this country, as we have 
seen{g), the English law as to aliens is not applicable : and, moreover, 
no person is, by reason of his descent or place of birth, exempted in 
any civil proceeding from the jurisdiction of any of the Courts(A), 
and alien enemies residing in British India with the permission of 

(a) Hindmarsh v. Southgate, 3 Russ., 343 ; and see the eases collected, 

327. There may however be circum- Lewin, 12th Edn., 45. 

stances where an infant trustee can be (d) Lamplughv. Lamplugh, 1 P. W-, 

held liable for moneys received during 112 ; Mumma v. Mumma, 2 Vern., 19 ; 

minority ; Be Games, 31 Ch. D. (C. A.), Taylor v. Taylor, 1 Atk., 3S6 ; Smith 

147. V. King, 16 East., 283. 

(6) Evroy v. Nicholas, 2 Eq., Gas. (e) JFish v. Klein, 2 Mer., 431. 

Abr., 489. See Saral v. Mohun, 25 (/) Meinertzhagen y. Davis, 1 Cbll.,, 

Gal., 265. 335 ; Se Harrison's Trusts, 22 L. J. 

(c) Stikeman v. Dawson, 1 DeG. & N. S.Gh., 69. 

Sm., 90 ; Wright v. Snowe, 2 DeG. & (?) See ante, p. 129. 

Sm., 321 ; Lempriere v. Lange, 12 Gh. (A) Act I of 1908, s. 10. 
D., 675; Woolfv. Woolf (1899), 1 Gh., 



Lee. v.] WHO may be a trustee. 133 

"the Governor-General in Council and alien friends may sue in the 
Courts of British India, as if they were subjects of Her Majesty. 
No alien enemy residing in British India, without such permission 
•or residing in a foreign country, may sue in any of such Courts, (a) 

In England, the Sovereign may sustain the character of a 
trustee, so far as regards the capacity to take the estate 
and to execute the trusts ; but great doubts have been ^^^^^ °^^' 
entertained whether the subject can, by an,y legal process 
there, enforce the performance of the trust. (6) 

And it has recently been expressly decided that the Govern- 
ment of this country cannot be a trustee. In Kinlock v. 
The Secretary of State for India{c), booty of war had been ^°' *^ 
granted by Her Majesty by Royal Warrant to the Secretary ^f india. 
of State for India in Council, ' in trust,' to distribute 
amongst the persons found entitled to share it by the decree of the 
Judge of the Court of Admiralty, to whom the matter had been 
referred by the Sovereign for that purpose, with a direction that 
doubts should be finally determined by the Secretary of State, 
Tinless Her Majesty should otherwise order. An action was brought 
against the Secretary of State by a person claiming to be entitled to 
share in the fund, and praying for an account. It was held, that the 
warrant did not operate as a transfer of property or create a trust, 
and that the defendant, being merely the agent of the Sovereign 
"to distribute the fund, was not liable to account to any of the 
parties entitled. James, L. J., said : " The Government of India 
is not, as it appears to me, capable of being a trustee ; nor is the 
Secretary of State for India in Council (the name by which the 
Government can be sued) a person capable of being a trustee any 
more than the Attorney-General in this country would be, or any 
other person, who sued in certain cases for, or on behalf of, the 
Grown." (d) 

According to the technical rules upon which the doctrine of 
uses proceeded, a corporation could not have been seised 
to a use, for, it was said, it had no soul, and therefore no tioS°'^*' 
confidence could be reposed in it.(e) But on principles of 
ordinary and natural justice, a body corporate has been held to be 
compellable to execute a trust, thus abolishing the rule that there 
must be a person in whom the confidence is placed.(/) " Primd 

(a) Ibid , s. 83. 536 ; Attorney-General v. Caius College, 

(b) See Lewin, 12th Edn., 29. 2 Keen, 165 ; Attorney-General v. 

(c) L. B , 15 C. T)., 1. Landerfield, 9 Madd., 286 ; Dummer v. 
{d) See also Viziaramaraju v. TJie Corporation of Chippenham, 14 Ves., 

Secretary of State for India, 5 Mad., 252 ; Attorney-General v. Earl of 

95 ; affirmed 8 Mad., 515, P.O. Clarendon, 17 'Ves., 499. See Munici- 

(e) Lewin, 12th Edn., 30. pal Corporations Act, 1882 (45 & 46 

( / ) Green v. Rutherford, 1 Ves., 468 ; Vict., c. 50.) 
Attcrney-Geieral v. Whorewood, ib.. 



134 WHO MAY BE A .TRUSTEE. [LeC. V. 

facie," said Lord Romilly, M. R.(a), " an ordinary Municipal 
Corporation has full power to dispose of all its property like any 
private individual, and the burden of proof lies on the person 
alleging the contrary to establish a trust. The trust may be of 
two characters ; it may be of a general character, or of a private 
and individual character. A person might leave a sum of money 
to a corporation, in trust, to support the children of B, and pay 
them the principal at twenty-one. That would be a private and 
particular trust, which the children could enforce against the corpora- 
tion, if the corporation, applied the property for its own benefit. 
On the other hand, a person might leave money to a corporation, in 
trust, for the benefit of the inhabitants of a particular place, or for 
paving or lighting the town. That would be a public trust for the 
benefit of all the inhabitants, and the proper form of suit, in the 
event of • any breach of trust, would be by an information by the 
Attorney-General(6), at the instance of all or some of the persons 
interested in the matter. If there was a particular trust in 
favour of particular persons, and they were too numerous for aU 
to be made parties, one or two might then sue on behalf of them- 
selves and the other cestuis que trustent for the performance of 
the trust." 

There is a statutory exception to the general rule, that a- 

corporation may be a trustee, in the case of the Presidency 

barics^"'^^ Banks, — that is to say, the Banks of Bengal, Madras, and 

Bombay. The Presidency Banks' Act (XI of 1876) provides 

that, except for the purpose of excluding the provisions of s. 17 

(relating to the forfeiture of stocks and shares), the banks shall not 

be bound or affected by notice of any trust to which any stock or 

share may be subject in the hands of the proprietor or holder. 

And the law in England is similar. 

A married woman may be a trustee. According to English 

Mar 'ed ^^^' ^* ^^ ^ ^®^^^ presumption (possibly it may be called a 

women. ^^g^' fiction) that a married woman is subject to the influence 

of her husband, and therefore she cannot be allowed to 

execute the trust without his concurrence, (c) Though the doctrine 

of unity of persons between husband and wife has been to a large 

extent superseded by the Married Women's Propertv Act, 1882 

(45 & 46 Vict., 0. 75. ss. 1, 18, 24), the Act has deprived the 

cestui que trust of the security of the husband's liability for the 

breaches of trust by the woman during coverture. In England 

therefore it has always been considered inadvisable to appoint 



(a) Evan v. The Corporation of (c) Avery v. Oriffin, L. R., 6 Eq., 

Avon, 29 Beav., 149. 606 ; Lhyd v. Pughe, L. R., 8 Ch., 88 ; 

(5) As to the procedure in this Wainford v. Heyl, L. R., 20 Eq., 321. 

oountry, ate Act V of 1908. See further, Lewin, 12th Edn., 33. 



Lee. v.] WHO MAY BE A TRUSTEE. 135 

a married woman as trustee, (a) But this does not apply to 
persons subject to the Indian Succession Act (X of 1865)(6), nor is 
it known to Hindu or Mahomedan law. 

An insolvent may be a trustee. The property of an insolvent, 
and such property as he may acquire before he obtains his 
discharge, vests in the Official Assignee(c), but not estates 
vested in him as trustee. These are unaffected by the insolvency(d), 
and although the trust-property may be changed, it will not vest 
if it can be traced, as where it exists in the shape of bills or notes(e), 
or any other substituted form(/), for the assignees of a defaulting 
trustee have no better right than the trustee, (p) But where the 
trust-property had become mixed with the bankrupt's general 
property, and could not be distinguished, it was held that the 
assignees would take it, and that the cestui que trust must 
prov .(h) 

Oestuis que trustent are not, as such, incapacitated from being 
trustees for themselves and others, but, as a general rule, 
they are not altogether fit persons for the office, in conse- trulunt ^^" 
quence of the probability of a conffict between their interest 
and their duty.(i) Where the trusts are onerous, and other persons 
cannot be found to undertake them, the Court will appoint a cestui 
que trust to be a trustee.(y) 

It is not advisable to appoint relatives to be trustees. The 
worst breaches of trust are committed by relatives, who Rgjatjyes 
are unable to resist the importunities of their cestuis que 
trustent when they are nearly related to them.(&) Where therefore 
the husband of a cestui que trust was appointed a trustee, .'-. provision 
was invariably made for a co-trustee. (^) 



(a) Smith r. Smith, 21 Beav., 385; (1900), 2 Ch. (C. A.), 79 ; Re Oatwaif 

Drummond v. Tracy, 1 Johns., 608 ; (1903), 2 Ch., 356. 
Lake v. De Lambert, 4 Ves., 593; Re (i) Forster v. Abraham, L. R., 17 

Kaye, L. R., 1 Ch., 387 ; Re Smith's Eq., 351 ; Passingham v. Sherborn, 

Mstate, 48 L. J. N. S. Ch., 205. 9 Beav., 424 ; Barnes v. Addy, L. R., 

(6) See ante, p. 129. 9 Ch., 244 ; Ashidbai v. Abdulla, 31 

(c) Act III of 1909 (Presidency- Bom., 271. 

towns), and Act III of 1907 (Provin- {j) Ex parte Glutton, 9 Jur., 988. 

cial). Re Cliasold's Settlement, 10 L. T. N. S., 

(d) See Houghton v. Kcenig, 18 C. B., 642 ; Tempest v. Lord Camoys, 58 L. T. 
235 ; Winch v. Keeley, 1 T. R., 619. N. S., 221. 

See Act III of 1909, s. 52 ; and Act III (k) Wilding v. Bolder, 21 Beav., 

of 1907, s. 2 (e). 222. 

(e) Ex parte Dumas, 2 Ves., 582. (I) Re Hattats Trusts, 18 W. R., 
(/) Frith v.OaHland, 211. &M.,417. 416; Re Lightbody's Trusts, 33 W. R., 
(g) Ibid. 452 ; Re Parrot, 30 W. R., 97. But 
(h) Ex parte Dumas, 1 Atk., 234; see ReJesson, 7th Aug., 1878, M. Y. ; 

Ryall V. Rolk, 1 Atk., 172 ; Scott v. Re Davis's Trusts, L. R., 12 Eq., 214 ; 

Surman, Willes, 403 ; Ex parte Dale & Re Sarah Knight's Will, 26 Ch. D. 

Co., n Ch. D., 272; Mutton v. Peat (C. A.), 82. 



136 NUMBER OF TRUSTEES. [LCC. V. 

An adequate number of trustees should be appointed. There 

are strong reasons against allowing trust-property to 

trustees remain in the hands of one trustee. He has the absolute 

control over it, and if tempted to commit a breach of trust, 

he can do so with less fear of detection than if there are co-trustees. 

When one of several trustees dies, steps should be at once taken to 

provide a successor. The safe rule, where money is concerned, 

is to appoint at least three trustees and to keep the number 

full.{a) 

No one is bound to accept a trust, and therefore any 

person who has been appointed a trustee may, if he has 

Disclaimsr. not acted in the office, disclaim. (6) If, however, he has 

Act'Tio"^*^ exercised any acts of ownership, he cannot disclaim, (c) 

' " ' " Though," said Lord Eedesdale(^), " a person may have 

agreed in the lifetime of a testator to accept the executorship, he 

is still at liberty to recede except so far as his feelings may forbid it ; 

and it will be proper for him to do so, if he finds that his charge as 

executor is different from what he has conceived it to be when he 

entered into the engagement." The office of trustee cannot be. 

disclaimed in part, so that a disclaimer as to a portion only of the 

trust-property is ineffectual, (e) A disclaimer of the office of 

trustee, express or implied, amounts to a disclaimer of the legal 

estate. (/) 

According to English law before the Conveyancing Act, 1881(5'), 
the heir of a trustee could not disclaim, the reason being that the 
legal estate, if the disclaimer were allowed, would have vested in 
the Crown. (A) As it was decided that the English rules of succes- 
sion to immoveable property applied to the descent of estates in 
land held by European British subjects(«), probably it would have 
been held that the heirs of a European British subject could not 
disclaim. As regards other British subjects, the distinction between 
legal and equitable estates does not exist, and the rules of 
inheritance are different, and therefore it would seem that the heir 
of such last named subject may disclaim. 

The disclaimer should be made without delay, as otherwise a 

question may arise as to whether there has not been an 

'^^ ^^' acceptance by acquiescence. This question is of course 

(a) See Lewin, 12th Edn., 43. 1 Ch. (C. A.), 228. 

(6) Robinson v. Pett, 3 P. Wms., {f) Us Birchall, 40 Ch. D. (C. A.), 

251; MoyU v. MoyU, 2 R. & M., 436. 

710 ; Lowry v. Fulton, 9 Sim., 123 ; (g) 44 & 45 Vic, c. 41, s. 30. 

Indian Trusts Act, s. 10. (h) Lewin, 12th Edn., 219. 

(c) BRnce v. Gilpin, L. R., 3 Ex., \l) See Gardiner t. Fell, 1 Moo. I. A., 
76. 299 ; Freeman v. Fairlie, ib., 305 ; 

(d) Doyle v. Blahe, 2 Soh. & Lef., Mayor of Lyons v. The East India Co., 
239. ib., 175 ; Sarkies v. Sm. Prosonno- 

(e) Ee Lord and Fullerton (1896), moyee Dosaee, 6 Cal., 794. 



Lee. v.] 



GIFT TO TRUSTEE. 



137 



in every case one of fact to be decided from the circumstances of 
the case, (a) 

The disclaimer may be by parol, but it is more prudent that 
it should be by writing, as there is less fear of ambiguity. (6) ^^^ ^^^^^ 
The instrument should be a disclaimer, and not a conveyance, 
though, if the intention to disclaim is apparent on the conveyance, 
that will be sufficient, (c) A trustee may disclaim in Court{rf) or 
by his written statement, (e) If notwithstanding he is continued 
as a party to the hearing, he will be entitled to his costs as between 
party and party. (/) But where the statement is needlessly long, 
the Court will allow only reasonable costs of a simple disclaimer. (^r) 
And there may be conduct which amounts to a clear disclaimer. (A) 

A trustee or executor to whom a bequest is given, may take 
the gift and disclaim the office(i), unless acting in the 
office is a condition attached to the gift.(y) The English Gift to 
Law presumes that a legacy to a person appointed executor is executor'^ 
given to him in that character, and this presumption can 
be rebutted by " something in the nature of the legacy or other 
circumstances arising on the will."(i) The Indian Succession Act 
lays down, however, that " if a legacy is bequeathed to a person 
who is named an executor of the will, he shall not take the legacy 
unless he proves the will or otherwise manifests an intention to act 
as executor."(Z) The language is peremptory, and leaves no room 
for a presumption. It is not left to the Court to decide whether 
the legacy was given to the person named in his character as 
executor. It is assumed that it was so given, and the prohibition 
follows, (m) 

A trustee or executor who has disclaimed may afterwards act 
as agent for the other trustees or executors, (n) He should, 



(a) See Doe v. Harris, 16 M. & W., 
5] 7 ; Noble v. Meymott, 14 Beav., 471 
Paddonv. Richardson, 7 D. M. G., 563 
James v. Frearson, 1 Y. & C. C. C, 370. 

(6) See Townson v. Tichell, 3 B. & 
Aid., 31 ; Stacey v. Elph, 1 M. & K., 
199. 

(c) Nicholson v. Wordsworth, 2 
Swauat., 372 ; Vrch v. Walker, 3 My. 
& Cr , 702. 

(d) In re EUiscm's Trusts, 2 Jur. 
<N. S.), 62 ; Foster v. Dawber, 1 Dr. & 
Sm., 172. 

(e) Norway t.' Norway, 2 M. & K., 
278 ; overruling Sherratt v. Bentley, 
1 R. & M., 655. 

(/) Bray v. West, 9 Sim., 429. 

(g) Martin v. Persse, 1 Mol]., 146. 

(h) Stacey v. Mph, 1 M. & K., 199 ; 
Delany v. Delany, L. R., 15 Ir., 55. 

(i) Talbot V. Radnor, 3 M. & K., 
■254 ; Pollexfen v. Moore, 3 Atk., 272 ; 



Andrew v. Trinity Hall, 9 Ves., 525. 

(j) Warren v. Rudall, 1 J. & H., 
1 ; Slaney v. Watney, L. R., 2 Eq., 418 ; 
Lewis V. Matthews, L. R., 8 Eq., 277. 

(k) Abbott V. Massie, 3 Ves., 148 ; 
Harrison v. Rowley, 4 Ves., .26 ; Stack- 
pooh V. Howell, 13 Ves., 417 ; Barber 
V. Tebbit, 29 Ch. D., 893. 

(I) Act X of 1865, s. 128. THs 
seotion applies . only to Hindu wills 
under Act XXI of 1870. 

(to) Prosona Coomar Ghose v. Ad- 
miniatrator-Oeneral of Bengal, 15Cal., 
83 ; Ramasami v. Kuppusami, 13 M. 
L. J. 35. 

(n) Dove v. Everard, 1 R. & M., 231 ; 
Stacy V. Elph, 1 M. & K., 195 ; Lowry 
V. Fulton, 9 Sim., 104 ; also Montgo- 
mery V. Johnson, 11 Ir. Eq. R., 481' 
(where a person named as trustee is to 
receive a benefit from his agency, a 
suspicion naturally arises). 



138 GIFT TO TRUSTEE. [LeC. V. 

however, be careful to disclaim clearly, as otherwise he may be 
considered to have accepted by acquiescence, (a) 

A disclaimer by one of two or more co-trustees vests the trust- 
property in the other or others(&), and makes him or then! sole 
trustee or trustees from the date of the creation of the trust, (c) 

When an authority to deal with the trust-property is given to 
several trustees and one of them disclaims or dies, the authority 
may be exercised by the continuing trustees, imless from the terms 
of the instrument of trust it is apparent that the authority is to be 
exercised by a number in excess of the number of the remaining 
trustees. (<Z) 

Where the trust is accompanied with a power, the truotee mav 
administer the trust without the appointment of a now tru£.tee.(e) 

A person named as trustee without his sanction, and called 
on to disclaim, is authorized in taking the opinion of counsel as to 
his obligation to execute a disclaimer. (/) 

(o) Be Stevens (1897), 1 Ch., 422 & Sm., 230. 

(1898), 1 Ch. (C. A.), 162; Small v. id) Indian Trusts Act, =. 44, 

Marwood, 9 B. & C, 299 ; Tovmson (e) Adams v. Taunton, 5 Madd., 

V. TickeU, 3 B. & A., 31 ; Browell v. 435 ; Cook v. Crawford, 13 Sm., 96 ; 

Eeed, I Hare., 435. Crawford v. Forshaw, 43 Ch. D., 643 ; 

(6) Indian Trusts Act, s. 10, (1891) 2 Ch. (C. A.), 261. 

(c) Peppercorn v. Wayman, 5 DeG. ( f) Re Tryon, 7 Beav., 496. 



LECTURE VI. 

DUTIES AND LIABILITIES OF TRUSTEES. 

Duties and liabilities of trustee : Indiiin Trusts Act, s. 11 — Trustee to acqua'nt 
himself of state of property : Indian Trusts Act, s. 12 — Trustee bound to 
protect trust-property : Indian Trusts Act, s. 13 — Gtetting in trust-estate — 
Estate outstanding on personal security — When securities to be realized — 
Care required from trustee : Indian Trusts Act, s. 15 — Loss occasioned by 
agent — By act of co-trustee — Trust-fund consisting of money — Control 
of trust-fund — Failure of banker — Trustee to prevent waste : Indian 
Trusts Act, s. 18 — Permissive waste — Cestui que trust may not benefit 
by waste — Tenants-for-life without impeachment of waste — When Court 
may interfere — Principle on which Court acts — Waste by Hindu widow 
— Suit for possession — Receiver — Alienation by widow — • Proper parties 
to sue — Collusion by immediate reversioner — Conversion of perishable 
property : Indian Trusts Act, s 16 — Howe v. Earl of Dartmouth — 
Pickering v. Pickering — Exceptions from rule — Trustee to be impartial — 
Discretion of trustees not interfered with : Indian Tiusts Act, ss. 17, 49 — 
Selecting objects of the trust — Modes of investment — Exercise of power 
by will — Trustee cannot set up title to trust-property • — Claim by third 
jierson — Delivery up of moveable property — Failure of cestui que trust — 
Trustee to keep accounts : Indian Trusts Act, s. 19 — Vouchers — Costs — 
Good faith — Managing member of Hindu family — Duties of trustee as to 
investment — Personal security — Shares in companies — Where personal 
security allowed — One cestui que trust not to be benefited at expense of 
others — Consent of cestuis que trustent to change — Continuing invest- 
ment — Varpng securities — Investment or mortgf ge ' — Trustees may 
not lend to themselves — Paying over mortgage-money — Consent of 
Court to investment — Investment of trust- money : Indian Trusts Act, 
ss. 20-21 — Remedy in case of non -investment — Remedy in case of 
wrongful investment — Insolvency of trustee — Duties of trustees for sale 
or mortgage — Trustee bound to sell to best advantage — Must attend 
to interest of all parties — Valuation — Absolute trust for sale will not 
authorize mortgage — ■ Trust to mortgage will not authorize sale - — Trust 
for sale survives — Trustees bound to make good title — Counsel's opinion 
— • Payment of purchase -money — Duties of trustees for purchase. 

We have now to consider what are the duties and liabilities 
incurred by a trustee after he has accepted. " As soon as a 
trustee has accepted the office, he must bear in mind that J?"^?^^.^"^ 
he is not to sleep upon it, but is required to take an active trustee?^ ° 
part in the execution of the trust. The law knows no such 
person as a passive trustee. If, therefore, an unprofessional person be 
associated in the trust with a professional one, he must not argue, 
as is often done, that because the solicitor is better acquainted 
with business and with legal technicalities, the administration of 
the trust may be safely confided to him, and that the other need 
not interfere except by joining in what are called formal acts.(a^ 

(n) Re Turner (1897% 1 Ch., oSfi. 



140 TRUST- PROPEKTY. [LBC. VI. 

If he sign a power-of-attomey for sale of stock, or execute a deed 
of reconveyance on repayment of a mortgage sum, he is as answer- 
able for the money as if he were himself the solicitor, and had the 
sole management of the transaction. "(a) But where by the 
negligent conduct of a solicitor, acting as trustee, an action is 
brought against himself and his co-trustee, he is liable to indemnify 
the co-trustee against the costs though the estates suffered no 
damage by it. (6) 

" Every person who accepts a trust is boimd to execute it(c) 
with fidehty, and with reasonable diligence ; it is no excuse to say 
that he had no benefit from it, but that it was merely honorary : 
the Court of Chancery looks upon all trusts as honorary, and as a 
burthen upon the honour and conscience of the party intrusted ; 
and for the execution of which he is even precluded from receiving 
or making any benefit or advantage whatsoever, "(ei) 

" The trustee is bound to fulfil the purpose of the trust, and to 

obey the directions of the author of the trust given at the time of 

its creation, except as modified by the consent of all the 

Act'Tii"^^ beneficiaries being competent to contiact. Where the 

beneficiary is incompetent to contract, his consent may, 

for the purposes of this section, be given by a principal Civil Court 

of original jurisdiction. Nothing in this section shall be deemed 

to require a trustee to obey any direction when to do so would be 

impracticable, illegal or manifestly injurious to the beneficiaries." 

A trustee is bound to acquaint himself with the nature and 
particular circumstances of the trust-property. But a 
Trustee to ^^^ trustee is not liable for any breach of trust committed 
himself of ^7 ^^^ predecessor. He is entitled to assume that every- 
state of thing before his coming in had been duly performed, and 

property. jjg cannot be charged with wilful default, because he did 

Act s. 12. ^°* ^^''^ back and inquire whether the former trustees 
had performed their duties up to that time.(e) 

If, however, he does not enquire into the state of the trust- 
fund, and does not take steps to get in any part which may be 
outstanding on improper secxirity, he will be liable for the conse- 
quences of his neglect, like any executor who knows that a debt is 
due to his testator's estate and omits to get it in.(/) Where 

(a) Lewin, 12th Edn., 230. (N. S.), 204 ; James v. Frearson, 1 Y. & 

(6) Be LinsUy (1904), 2 Ch., 785 ; C. C. C, 370 ; Ex parte Geaves, 25 L. J. 

Lochhart v. Reilly, 25 L. J. Ch., Bkey., 53 ; Yode v. Chmd, L. R., 18 

697. Eq., 634 ; Hallows v. Lloyd, 39 Ch. D., 

(c) Charitable Corporation v. Sutton, 686 ; De Sauza v. DeSouza, 12 B. H. C. 

2 Atk., 406. R., 184 ; Tirupatirayudu v. Lakshmi- 

{d) 2 Sp. Eq. Jur., 918. narasimha, 35 Mad., 71. This rule 

(e) Bx parte Oeaves, 25 L. J. Bkoy., applies also to charitable trusts ; 

53. Subramania v. Prayag Dos, 33 I. C, 

(/) Taylor v. Millinglon, 4 Jur. 677. 



Lee. VI.] TRUST-PROPERTY. 141 

marriage-settlement contained a covenant on the part of the husband 
to settle after-acqnired property, it was held that a new trustee 
was not liable for not having inquired as to whether any such 
settlement had been made, there being nothing to lead to a suspicion 
that any default had been made by the old trustees or the 
covenantor.(a) A trustee of chattels, personal, settled for the 
separate use of a married woman should take care that an inventory 
is made, otherwise he may be deprived of his costs. (6) 

The office of a trustee is to a certain extent onerous. We 
have seen(c) that the law does not recognize a passive trustee, but 
that he must take an active part in the execution of the trust. 
A trustee is bound to maintain and defend all such suits, and 
(subject to the provisions of the instrument of trust) to take 
such other steps as, regard being had to the nature and 
amount or value of the trust-property, may be reasonably protect title 
reqxiisite for the preservation of the trust-property and the to trust- 
assertion or protection of the title thereto, (rf) And as a Pi^op^rty. 
general rule, trustees are bound to press on all the remedies ^ct'^" 13"^'^ 
for the recovery of debts due to the trust-estate ; and if 
any securities seem proper to be continued, it seems the only safe 
course for trustees to adopt, is to submit the point to the judgment 
of the Court, — not to decide upon it themselves, unless a discretionary 
power to that extent be expressly or by clear imphcation given to 
them : else they will be answerable for any loss that may ensue in 
consequence of their misplaced confidence, however good may have 
been their intention, (e) 

Power has been given to trustees in India to sue for the posses- 
sion of specific moveable property to the beneficial interest in which 
the person for whom they are trustees is entitled. Possession is 
to be recovered in the manner prescribed by the Code of Civil 
Procedure. (/) 

Trustees are bound to place the trust-property in safe secu- 
rities, and will be liable for loss if they delay in getting it 
in and investing it.(^) For instance, if debts are outstand- pitting 
ing, it is the duty of the trustees to get them in as soon as estate. " 
possible ; and if in consequence of their neghgence the debts 
are lost by the debtor's insolvency, or if the right to sue is barred 
by limitation, they will be personally liable. (%) 

(a) Geavea v. Strahan, 8 D. M. G., (Where rent fell in arrear, the trustees 
29i_ were made liable to make the arrears 

(b) Enqlani v. Downs, 6 Beav., 279. good, though without interest.) 

(c) Ante., p. 139. (/) Act V of 1908. 

(d) Goode v. Burton, 11 Jur., 851. (?) See DeSouza v. DeSouza, 12 
See Speciao Relief Act (I of 1877), s. 10. B. H. C. R. , 190. 

(e) Oaskellv. Harman, 11 Ves., i89 ; (h) Gaffrey v. Darby, 6 Ves., 488; 
Lowson V. Gopelarid, 2 Bro. C. , 157 ; Jones v. Higgins, L. R., 2 Eq., 538 r 
Tebba v. Carpenter, 1 Madd., 298. Ex parte Ogle, L. R., 8 Ch., 711 ; 



142 PERSONAL SECURITY. [L3C. VI. 

So, if a man covenants to settle a certain sum within a given 
period, and the trustees execute the trust-deed and sign a receipt 
for the money, they will be liable. (a) There is no objection to 
trustees receiving money before the date on which it is payable, 
if the debtor chooses to pay it. (6) 

There is no rule laid down for the time within which executors 
are bound to get in the assets(c), but the Court will be guided by 
the circumistances and executors generally have a wide discretion. (<i!) 

Trustees may fairly allow a debt to be paid by instalments, 
but they will not be justified in granting any great indulgence. (e) 
In the exercise of a fair discretion they need not commence legal 
proceedings unnecessarily, but they should exert themselves to get 
in the debt, and, if necessary, commence compulsory proceedings to 
obtain it.(/) Where by the terms of the trust payment is deferred 
to a specified time, prompt action is necessary (^), but in the absence 
of funds, the trustee is not bound to commence proceedings at his 
own expense. (A) 

When trustees bond fide exert themselves to discharge their 
duty, and merely commit an error in judgment, unless there is a 
plain violation of trust, they will not be visited severely. The fair 
exercise of their judgment is a protection to them, although the 
consequences may be bad.(t) 

Estate If part of a testator's estate is outstanding on personal 

outstandmg security, it is the duty of the executors to take steps to get 
security. it iii(i), even though the debtor is a co-executor. (A) 

The fact that the testator approved of the security and had 
continued it for many years, and that it was good at the time of 
his death, will not relieve the executors from responsibility in case 
of loss.(i) Personal security changes from day to day by reason 
of the personal responsibility of the party giving the security, and 



. Adams, 2 H. L. C, 725; N. S., 370. 

Stone V. Stone, Jj. B,., 5 Ch., 1i ; Grove (j) Garrett v. Noble, 6 Sim., 516; 

V. Price, 26 Beav., 103 ; Se Brogden, Marsden v. Kera, 5 Cli. D. (C. A. ), 598 • 

38 Ch. D., 546; Be Stevens (1898), Re CAapmam (1896), 2 Ch. (C. A.), 763 ; 

1 Ch. (C. A.), 162. Seulthorpe v. Tipper, L. R., 13 Eq., 

(o) Westmoreland v. Holland, 19 232 ; iJe B/aifce, 29 Ch. D. (C. A.), 913 • 

W. R. , 302 ; affirmed, W. N., 1874, 124. Re Norrington, 13 Ch. D. (C. A.), 654. 

(6) Mills V. Osborne, 7 Sim., 30. (j ) Lowson v. Copeland, 2 Bro. C. 

(e) Hiddingh v. Denyssen, 12 Ap. C, 156; Bailey-^. Gould, 4 Y. & C, 

Gas., 624 ; Be Chapman (1896), 2 Ch. Ex., 221 ; Attorney-General v. Higham, 

(C. A.), 763. 2 Y. & C. C. C, 634. 

{d) Hughes v. Empson, 22 Beav., (k) Styles v. Guy, 1 Mac. &G.,422; 

183 ; Buxton v. Buxton, 1 M. & Cr., 80. Egbert v. Butter, 21 Beav., 560 ; Candler 

(e) Caffrey v. Darby, 6 Ves., 495. v. Tillett, 22 Beav., 257. 

(/) Caney T. Bond, 6 Beav., 486. {I) Powell v. Evfins, 5 Ves., 839 

Ig) Be Brogden, 3S Oh. D. (C. A.), Tebbs v. Carpenter, 1 Madd., 290 

546 ; Be Hurst, 63 L. T. N. S., 665. Clough v. Bond, 3 M. & Cr., 496 

(h) Tudball v. Medlicott, 59 L. T. Bullock v. Wheatley, 1 Coll., 130. 



Lee. VI.] REALIZATION OF SECURITIES. ' 143 

as a testator's means of judging of the value of that responsibility 
are put an end to by his death, the executor who has omitted to get 
it in within a reasonable time, becomes himself the security, (a) 
An application to the debtor must be followed up by legal proceed- 
ings if not attended to ; a mere demand through an attorney will 
not discharge the executor. (&) 

But executors wUl not be liable for not taking legal proceedings, 
if it appears that the proceedings would have been useless, (c) And 
if it appears that though the whole debt could not have been 
recovered, a part might, they will only be liable for what might have 
been recovered.(<i) But the burden of proving futility of any 
proceedings lies on the trustee pleading the excuse, (e) 

A direction in the will that the executors shall call in securities 
not approved by them, will not discharge them from liability for 
loss arising from the failure of personal security. Such a direction 
must be considered as referable to securities upon which a testator's 
property might, from their nature, be invested, and not as author- 
ising a kind of investment which a Court of Equity will not 
sanction. (/) 

And if a settlement contain a clause that the trustees are to 
get in the money, " whenever they shall think fit and expedient 
so to do," they will be liable if they refrain from enforcing payment 
out of tenderness to the tenant- for-Ufe, without due regard to the 
interests of all the cestuis que trustent.{g) 

If the testator's property is outstanding on securities which 
may reasonably be considered as safe, the executors are not y., 
bound to call them in, until the creditors call for payment securities 
of their debts ; or unless they have reason to suspect the to be real- 
solvency of the debtor. " What," said Lord Thurlow(A), '^^'^* 
" is the executor to do. Is he to call in the securities before creditors 
require payment of their debts ? Must the money lie dead without 
interest, or must he put it out on fresh securities ? On the original 
securities he had the testator's confidence for his sanction ; but on 
any new securities it will be at his own peril."{i) The trustees, 



(a) Bailey v. Gould, 4 Y. & C, 546 ; iJe Hurst, 63 L. T. N. S., 665; 

Ex., 226, per Alderson, B. ; Re Tucker Re Stevens, 1 Ch. (C. A.), 162. 

(1894), 1 Ch., 724. (/) Styles v. Guy, 1 Mac. & G., 428, 

(6) Lowson V. Copeland, 2 Bro. C. per Lord Cottenham. 

C, 156. (g) Luther v. Bianconi, 10 Ir. Ch., 

(c) CUck V. Holland, 19 Beav,, 262 ; 194. 

Hobday v. Peters (No. 2), 603 ; Walker (h) Orr v. Newton, 2 Cox, 276. Se 

V. Symonds, 3 Swanst., 71 ; Re Roberts, Chapman (1896), 2 Ch. (0. A.) 

76 L. T. N. S., 479. 763. 

(d) Maitland v. Bateman, 16 Sim., (i) And see Howe v. The Earl of 
233 (n). Dartmouth, 7 Ves., 150. 

(e) Re Brogden, 38 Ch. D. (C. A.), 



144 CAEE EEQUIEED FROM TRUSTEE. [LCC. VI. 

however, should enquire whether the securities are safe, and call 
them in if they are not. (a) 

In all suits concerning property vested in a trustee, executor, 
or administrator, when the connection is between the persons 
beneficially interested in such property and a third person, the 
trustee, executor, or administrator shall represent the persons so 
interested, and it shall not ordinarily be necessary to make them 
parties to the suit. But the Court may, if it thinks fit, order them, 
or any of them, to be made parties. (6) 

A trustee is bound to deal with the trust-property as carefully 

as a man of ordinary prudence would deal with such property if it 

were his own ; and, in the absence of a contract to the contrary, 

a trustee so dealing is not responsible for the loss, destruction 

or deterioration of the trust-property. A trustee is bound to 

take the same care of the trust-property as he would of his own. 

Care re- ^^^ ^^^ more care(c) ; and if he has taken such care, 

quired from he will not be liable for loss, destruction, or deterioration 

trustee. of the trust-property. Thus, a trustee was held not to 

Indian Trusts |^g liable when the trust-property was stolen from his 

' ' ' house, together with property of his OYm.(d) So, where 

the defendant, an administratrix, had handed over certain goods to 

her solicitor, from whose custody they were stolen, it was 

Loss occa- Jigiij that she should not be charged, (e) Where, however, 

agent ^ *^® ^°®® ^® occasioned by the act of a person employed 

by the trustee, the trustee will have to bear the loss(/) ; 

as where the loss is caused by his solicitor, having committed 

a fraud on the occasion of the investment of the fund on 

mortgage.(5') 

Where the trust-property consists of securities or articles which 

pass by delivery, and there are several trustees, the property 

oj^trustee should be deposited with the barkers of the trustees ; 

and if it is so deposited, and the bankers, without the privity 

or concurrence of the co-trustees, allow one of the trustees to have 

access to the property, and he makes away with it, the co-trustees 

remaining ignorant of the fact are not liable to make good any 

(o) Ames v. Parkinson, 7 Beav., 384 ; Meek, 14 Ap. Cas., 558. 

Harrison v. Thexton, 4 Jur., N. S., 550 ; (d) Morley v. Morley, 2 Ch. Cas., 2 ; 

Re Chapman (1896), 2 Ch. (C. A.), 763. Exparte Griffin, 2 Gl. & J., 114 ; Jobson 

As to trustees' receipts, see Lemn, 12th v. PaJmer (1893), 1 Ch., 71. But see 

Edn., 325. Sutton v. Wilders, L. R., 12 Eq., 377 

(6) Act V of 1908, Or. 31, rule 1. (e) Jones v. Lewis, 2 Ves., 240. 

(c) Morley v. Morley, 2 Ch. Cas., 2 ; ( / ) Bosiock v. Floyer, L. R., 1 Eq., 

Jones V; Lewis, 2 Ves., 240 ; Attorney- 28. Also Be Brier, 26 Ch. D. (C. A.), 

General v. Dimie, 13 Ves., 534 ; Massey 238 ; Shepherd v. Harris (1905), 2 Ch., 

V. Banner, 1 Jao. & W., 247 ; Be 310. 

Speight,22Ch.I>.{C.A.),139;Learoyd (g) Sutton v. Wilders, L. R., 12 

V. Whiteley, 12 Ap. Cas., 727 ; Knox v. Eq., 373. 
MacKinnon, 13 Ap. Cas., 673 ; Eae v. 



Lee. VI.] CONTROL of trust-fund. 145 

portion of the property misappropriated, (a) An executor is not 
bound to insure, or continue the insurance of, his testator's property 
against fire. (6) 

Where the trust-fund consists of money, the trustee, pending 
investment, may place the money in the hands of a 
banker, (c) The trustee should open a separate account Trust-fund 
in the name of the trust-estate, and should not mix the of mone^ 
trust-fund with his own money, (d) If he does so, he wiU be 
liable in case the banker fails, (e) If the mixture assumes a form 
in which it is impossible to ascertain the shares of the trust, the 
trust will be entitled to the whole mixture. (/) And a trustee 
win be Uable for loss, if he allows a person to draw upon the 
trust-property in the bank, and such person misappropriates the 
money, (gf) And he will be liable for the failure of a banker(A), or 
broker (i), if the money ought to have been invested or otherwise 
dealt with, and not left in the banker's or broker's hands : and the 
usual indemnity-clause will not in such cases protect the trustee. (j) 

The trustee must be careful not to put the trust-fund out of 
his control and under the control of other persons. If he 
does so, he guarantees the solvency of those persons, and f^u^t-fund 
will be answerable for any loss that may ensue(^) ; and the 
liabUity will be the same, although the persons imder whose control 
the property was left were co-trustees, (i) 

In a case before Sir A. Hart, in Ireland, an executor was held 
to be justified, though he had placed the assets in a bank so as to 
be imder the control of the co-executor. The money was entered 
in the books to the joint account of the co-executors, but the bank 
was in the habit of answering the cheques of either co-executor 
singly. " It is the custom of bankers," said Lord Chancellor Hart, 

(o) Mendes v. Guedalla, 2 Johns. & Ex parte Kingston, L. R., 6 Ch., 632 ; 

H., 259. and see In re Hallett's Estates, Knatch- 

(6) Bailey v. Gould, iY. & C, Ex., bull v. Hallett, L. B., 13 Ch. Div., 

221 ; Dobson t. Land, 8 Hare, 216 ; 696. 

Fry V. Fry, 27 Beav. , 146. See the ( /) In re Oa'wiy, Hertslet v. Oafway 

Trustee Act, 1893 (56 & 57 Vic., c. 53), (1903), 2 Ch., 386. 

s. 18. (g) Ingle v. Partridge, 32 Beav., 661 ; 

(c) Routh V. Howall, 3 Ves., 565 ; Evans v. Bear, L. B., 10 Ch, 76 ; Fer- 
Jones V. Lewis, 2 Ves., 241 ; Adams v. guson v. Ferguson, ib., 661 ; Hardy v. 
Claxton, 6 Ves , 226. Metropolitan Land and Finance Co.y 

(d) Duki of L edi v. Amherst, 20 L. B., 7 Ch. Ap., 427. 

Beav, 2{9 ; In re Cowie, 6 C.l., '0; {h) Challen v. Shippam, 4 Hare, 

Chintaman v. Dho'do Oave'<h, 16 555; Swinfen v. Swinfen, 29 Beav.,. 

Bom., 612 ; Sriramulu v. Subbaroyudu 211 ; Rehden v. Wesley, ib., 213. 

10 I- C , 57 ; Nilaya hak%i v. Talug (t) Mathews v. Brise, 6 Beav., 239. 

Board of Mayavaram (1911), 2 M. W. (j) Rehden v. Wesley, 29 Beav., 213. 

N., 350. {h) Salway v. Salway, 2 R. & M.,. 

(e) Wilks V. Groom, 3 Drew., 584 ; 218 ; a£Ed., nom. White v. Baugh, ib., 
Johnson v. Newton, 11 Hare, 160; 220. 

fen V. Swinfen (No. 5), 29 Beav., {I) Lewis v. Nobba. L. R.j 8 Ch.. 



211; Pennell v. Deffell, 4 D. M. G., 386 ; Div. ,591. 

A, LT 10 



146 



FAILURE OF BANKER. 



[Lec. VI. 



Failure of 
lianker. 



" that what is deposited by one to the joint account may be with- 
drawn by the cheque of the other ; and for convenience of business, 
it is necessary tins risk should be incurred, for it would be very 
hard to transact business if every cheque should be signed by all 
the executors." However, his Lordship admitted, that "if there 
were any fraud or collusion, wilful default or gross neglect, or if 
the executor had any reason to put a stop to the mismanagement 
by the co-executor, the case would be altered."(a) " But," says 
Mr. Lewin, " even with this qualification the doctrine is so contrary 
to the principle of other cases, that no trustee or executor could 
be advised to rely upon it in practice." 

Trustees will be liable for loss incurred by the failure of 
bankers, if it was their duty to have invested the trust- 
moneys(&), or to have paid them over to new trustees(c), 
or into Court, (d) 

An investment with the bankers themselves upon the security 
of their notes-of-hand is not sufficient, for that is merely a personal 
security, (e) 

But executors require a certain amount of ready-money to 
enable them to wind up their testator's estate, and are entitled to 
keep such a sum uninvested at their bankers, and will not be made 
liable if it is lost within the year allowed for satisfying claims. (/) 

Where executors drew trust-funds out of one bank, and 
invested them on a deposit account at interest in another bank, 
such an investment not being authorised by the will, they were 
held to be personally hable, notwithstanding a clause in the will 
indemnifjring them against losses by a banker of money deposited 
for safe custody, (gr) 

It is a grave breach of duty in trustees or administrators taking 
out letters of administration to estates in this country, under 
powers-of-attorney from executors or next-of-kin abroad, to miTr 
the incomes raised by them from trust-properties, or the funds of 
the estate, in one common fund with their own moneys, and such 
a course of dealing may expose the trustees or administrators to 
criminal as well as civil liabilities, (fe) 



(a) Lewin, 12th Edn., 331, citing 
Kilbee v. Sneyd, Z Moll., 186. 

(6) Moyle v. Moyle, 2 R. & M., 710 ; 
Johnson v. Newton, 11 Hare, 160. 
In re Diivis, Davis v. Dctvis (1902), 
2 Ch., 304; Tirupatiroyudu v. 
Lakshminarasamma, 38 Mad., 71. 

(e) Lunham t. Blundell, 4 Jur., 
N. S., 3. 

(d) Wilkinson v. Bewick, 4 Jur., 

a. s., 1010. 

(e) Darke v. Martyn, I Beav., 525. 
(/) Johnson v. Newton, 11 Hare, 



160 ; Swinfen v. Swinfen (No. 5), 
29 Beav., 211. See Subramanya v. 
Prayag Doss, 33 I. C , 677. 

(gr) Rehden v. Wesley, 29 Beav., 213. 
See also Bamanathan v. Swaminatha, 
23 M. L. J., 278; Akhan v. Soran, 
38 Mad., 260. 

(ft) In re Cowie, 6 Cal., 70 ; 
Neelayatakshiammal v. Taluq Board of 
Mayavaram [1911], 2 M. W. N., 350. 
See Lewin, 12th Edn., 330, for the 
English authoritie?. 



XeC. VI.] PERMISSIVE WASTE. 147 

Where a trust is created for several persons in succession, as 
wliere property is devised to trustees, upon trust, to permit x^ustee to 
A to enjoy tie rents and profits for his life, and after his prevent 
death an interest in the property is given to B, and the waste, 
person having the life-estate conunits, or threatens to Act'Tis"^** 
•oommit, any act which is destructive or permanently ' 

injurious to the trust-estate, such as cutting down timber or 
destroying houses, the trustee ought to sue for an injunction to 
restrain the tenants-for-life from committing the acts of waste. 
^' There can be no doubt," said Lord Langdale, " that it is the duty 
■of the trustee to protect the property against the improper acts of 
the tenant-for-life."(a) And if the persons in remainder are unborn, 
•or under disability, the trustees are bound to interfere. (6) This is 
the duty of the trustees, but if they do not interfere, the remainderman 
has a right to apply for the injunction, (c) So in the case of mort- 
gages, if the mortgagor or mortgagee in possession commits waste, 
•or threatens to commit it, an injunction will be granted, (i) 

An injunction can only be obtained to prevent the commission 
•of acts of active waste, not to restrain the tenant-for-life 
from allowing permissive waste, as by allowing the trust- ^a^ste'^^'^^ 
property to faU into disrepair.(e) " I think," said Wood, 
V. C., " that it is not possible to obtain a remedy against permissive 
waste indirectly through the medium of a trust created in the 
property. If I were to hold that, it would be most inconvenient. 
If every trustee is to be considered liable, though merely a trustee 
under a will, which devises the property to and to his use, as in 
Denton v. DenUm(f), in cases of permissive waste for want of 
repairs, the difficulty which is now felt of getting respectable persons 
to act as trustees would be increased. I can foresee no end to the 
demands which would be made upon trustees by remaindermen 
-coming into possession of the trust-property, who might think it 
not sufficiently repaired, if they might say to the trustees ' it was 
your duty to look after the tenant-for-life, you had the legal estate, 
and it was your business to see that he was performing all these 
trusts ; and as you have not done so, we shall fix you with the 
liability.' I think that such a doctrine cannot possibly be estab- 
lished."(^) On appeal(A), the decision of Wood, V. C, was affirmed. 
Lord Cottenham, L. C, sajring : "It was argued, independently 

(a) Pugh V. Vaughan, 12 Beav., 517, [d) Robinson v. Litton, 3 Atk., 485 ; 

520. See also Denton v. Denton, 7 Garth v. Cotton, 1 Dick., 183 ; 1 Ves., 

Beav., 388 ; Powya v. Blagrave, Kay, .524, 546 ; Stansfield v. HabergTmm, 10 

495; 4D. M. G., 448; Be Hotchkys, Ves., 277. 

32 Ch. D. (C. A.), 4fl8 ; Se JITClure's (e) Denton v. Denton, 7 Beav., 388 ; 

Trusts (1906), W. N., 200. Pugh v. Vaughan, 12 Beav., 517. 

(6) Poioys V. Blagrave, Kay, 495; (/) 7 Beav., 388. 

4 D. M. G., 448. Ig) Powys v. Blagrave, Kay, 495, 

(c) Perrot v. Perrot, 3 Atk., 94; 506. 

¥iner v. Vaughan, 2 Beav., 469. (h) 4 D. M. G., 448. 



148 PERMISSIVE WASTE. [Lcc. VL 

of the trust, that it is the duty of a tenant-for-life to repair, 
' Equitas sequitur legem.' But even legal liability now is very 
doubtful, (a) Whatever be the legal liability, this Court has always 
declined to interfere against mere permissive waste : Lord Castle- 
main V. Lord Craven(b) ; there the Master of the Eolls said, ' the 
Court never interposes in case of permissive waste either to prohibit 
or to give satisfaction, as it does in case of wilful waste.' On this 
ground relief was refused in Wood v. Gaynon.(c) In that case a 
tenant-for-life had been guilty of permissive waste, and the plaintiff 
and one of the defendants, Benjamin Lyme, were the reversioners ; 
Lyme refused to join with the plaintiff in an action at law. The 
Master of the Eolls refused to assist the plaintiff, saying that as 
there was no precedent, he would not make one ; adopting the 
argument, that it would tend to harass tenants-for-life and joint- 
resses, and that suits of this kind would be attended with great 
expense in depositions about the repairs. With respect to the 
case of CaUwall v. Baylis{d), it does not sustain the doctrine for 
which it was cited. The case of Re Shingley(e) was founded on the 
express obligation of the lunatic to repair. I do not refer to the 
cases where the question has been as to the right to charge assets. 
There the decisions have rested on other grounds. There is no 
precedent for what is asked in this respect. I certainly will not 
be the first to make one." 

If the person in possession of the trust-estate, the tenant-for- 
„ ^ life, commits active waste, he will not be permitted to 

trust may derive any benefit from his wrongful act, but the money 

not benefit arising therefrom wiQ be preserved for the remaindermen.(/ ) 
by waste. j£^ however, the tenant-for-life has expended money in 

permanent improvements on the trust-estate, he will be allowed 

credit for such sums.(g') 

If the cestui que trust is tenant-for-life without impeachment 

of waste, — ^that is to say, if the instrument creating the 

Tenants- txQst declares that the tenant-for-life shall not be pimish- 

witiiout able for waste, or the cestui que trust is tenant-in-tail after 

impeach- possibility of issue extinct, which is the case where an estate 

ment of jg limited to a man and the heirs of his body by a particular 

wife, and she dies without having had children, or none of 

her children are living at her death, the cestui que trust may commit 

ordinary waste. But he will be restrained from committing what 

is known as ' equitable waste,' by felling timber planted or left 

(o) Gibson v. Wells, 1 N. R., 291 ; (J) Garth v. Cotton, 2 Ves., 524 ; 

Eerne v. Benbow, 4 Taunt., 764. X Dick., 183 ; Williams v. Duke of 

(b) 22 Vin, Abr., 523, tit. ' Waste,' BoUon, 3 P. Wms., 268 {%) ; Seagram v. 
pi., 11. Knight, L. R , 2 Ch., 628. 

(c) Amb., 395. (g) Birch Wolfe v. Birch, L. R., ft 
{d) 2 Mer., 408. Eq., 683. 

(e) 3 Mao. & G., 221. 



Lee. VI.] KESTRAINING WASTE. 149 

standing for the shelter or ornament of the family mansion-house 
or grounds, (a) 

It is not necessary, in order to give the Court ground for 
interfering, that the plaintiff, whether trustee or remainder- 
man, should wait until a serious act of waste has been When 
committed(6) ; but the Court will interfere if a fair case of interferet^ 
prospective injury has been made out.(c) The mere 
apprehension or belief that waste will be committed is not 
.sufficient(d!) ; but if an intention to /jommit waste can be shown 
to exist, or if a man insists on his right, or threatens to coiflmit 
waste, there is a foundation for the exercise of the jurisdiction, (e) 

If the act of waste is trivial, the Court will not interfere, unless 
it appears that further waste is intended or threatened. (/ ) 

In order to obtain the assistance of the Court, it is only neces- 
sary to prove that a single act of waste, whether legal or equitable, 
has been committed. (5) 

The broad principle upon which a Court administering equity 
acts in restraining a person, who has only a limited interest 
in property of which he is in possession, from destroying or P"^'"c»ple 
injuring such property, is, that of protecting property from court acts, 
irreparable injury, and to prevent a malicious, wanton, and 
capricious abuse of their rights and authorities, by persons having 
but a temporary and limited interest in the subject-matter. By 
irreparable injury(A) is meant, not such injury as cannot by any 
possibility be repaired, but serious and material injury, which 
cannot be adequately compensated for by pecuniary damages, (i) 

Acting upon principles in some respects analogous to those 
upon which the Courts of Equity in England act in restrain- 
ing a tenant-f or-life from committing waste, the Courts of ^^^^ ^^ 
this country have, in many instances, restrained a Hindu widow, 
widow from acts injurious to the property which she has 

(a) See Oarth y. Cotton, 1 Ves., 524, Potts v. Potts, 3 L. J., Ch., 176 ; Gamp- 

£46 ; 1 Dick., 183, and the notes to bell v. Allgood, 17 Beav., 623 ; Cowley 

thatcase, IWh.andT. L. C.,4thEdn., v. Byas, 5 Cli. D., 944; Ripon y. 

pp. 697, 750; MickMhwaUe v. M., Habart, 3 M. &; K., 174; Haines v. 

1 DeG. & J., 504 ; Baker v. Sebright, Taylor, 10 Beav., 75 ; Ghabildas v. 

13 C. D., 179 ; Weld-Blundell v. Municipal Commissioner of Bombay, 

Wolesley (1913), 2 Ch., 664; see also 8 B. H. C. R., 85. 

Dashwood v. Magniac (1891), 3 Ch. (e) Ibid. See Secretary of State for 

(C. A.), 306 ; Philips v. Hompray India v. Amhalavana, 34 Mad., 366. 

(1892) 1 Ch. (C. A.), 465. (/) Brace v. Taylor, 2 Atk., 253; 

(6) Gibson v. Smith, 2 Atk., 182 ; Barry v. Barry, 1 J. & W., 653 ; Lam- 
Coffin^ V. Coffin, Jac, 71. bert v. Lamiert, 2 Ir. Eq., 210 ; Coffin v. 

(c) Tipping v. Eckersley, 2 K. & J., Coffin, Jac, 71. 

264 ; Elliott T. North-Eastern R.C.,\ J. (g) Coffin v. Coffin, 6 Mad., 17. 

& H., 145 : 2 D. F. & J., 423 : 10 H. L., (h) See Kerr on Injunctions, Ch. in, 

333 ; Hext v. GiU, L. R., 7 Ch., 700. s. 1. Specific Relief Act (I of 1877), 

See Pattison v. Gilford, 18 Eq., 256 ; ». 54. 

Bindu Basaniv.Jahnabi, 24: C&i., 260. (i) Ghanashamv. Maroba, 18 Bom., 

(d) Hanson v. Gardiner, 7 Ves., 307 ; 488 ; Wood v. SwtcUffe, 21 L. J. Ch., 255. 



150 SOTT FOE POSSESSION. . [LCC. VI^ 

inherited from her husband.(») " Such acts," says Mr. MayTxe(6)r 
" are of two classes :^fvrst, those which diminish the value of the 
estate ; second, those which endanger the title of those next in 
succession. First, under this head come all acts which answer to the 
description of waste, — ^that is, an improper destruction or deteriora- 
tion of the property. The right of those next in reversion to bring 
a suit to restrain such waste, was established apparently for the first 
time by an elaborate judgment of Sir L. Peel, in 1851, in Hwrrydass^ 
Dutt V. Rungunmoney. What will amount to waste has never 
been* discussed. Probably no 'assistance upon this point could be 
obtained from an examination of the English cases in regard to- 
tenants-for-life. The female heir is, for all purposes of beneficial 
enjoyment, full and complete owner. She would, as I conceive, 
have a full right to cut timber, open mines, and the like, provided 
she did so for the purpose of enjoying the estate, and not of injuring, 
the reversion. As Sir L. Peel said : ' The Hindu female is rather 
in the position of an heir taking by descent imtil a contingency 
happens, than an heir or devisee upon a trust by impUcation. 
Therefore, a bill filed by the presumptive heir in succession against the 
immediate heir who has succeeded by inheritance, must show a case 
approaching to spoUation.' " " It is necessary," said the Right Hon. 
T. Pemberton Leigh(c), " to show that there is danger to the pro- 
perty from the mode in which the party in possession is dealing with 
it, in which case, and in such case only, the Court will interfere. "(<i) 

If the widow has committed an act involving forfeiture of 

property, the reversioners will be entitled to immediate 

oosse"'' possession. (e) A suit will lie for possession with a view to 

the prevention of waste, either inchoate or threatened, though 

of course evidence of such a nature must be procured as will convince 

the Court that, but for its interference, ultimate loss to the heirs 

by succession will ensue. (/) The ground for removing the widow 

from the management of the property in these cases is, that she has 

proved herself to be unworthy of the confidence reposed in her.(g') 

. When it is shown that ultimate loss to the estate will 

result from the acts of the widow, the Court will appoint a 

(a) See Nundlal Baboo v. Bolake Durga v. Chintamoni, 31 Cal., 214 ; 

Bebee, S. D. A. of 1854, p. 351 ; Muthur Janaki v. Narayanasami, 39 Mad., 

V. Narayana, 7 M. L. J., 216 ; Mt. Tajo 334 P. C. 

V. Allah Din, 35 I. C, 229. (e) M. S. Kishnee v. Khealee Sam, 

(6) Hindu Law and Usage, 8th Ed., 2 N. W. P., 424. 

s. 647. Aa to mining, see Subbareddi ( / ) Goureehanth Doss v. BJiogobutty 

V. ChengaUmma, 22 Mad., 126. Dassee, S. D. A. of 1858, p. 1103 ; 

(e) Hurry Doss Dutt v. Sm. Up- Ooluk Monee Dassee v. Kishenpersad 

poornath Dassee, 6 Moo. I. A., 446. Kanoongoe, S. D. A. of 1879, p. 210. 

(d) See also Bindoo Bassinee Dassee {g) Nundlal Baboo v. Bolakee Bebee, 

V. BoUechand Sett, 1 W. R., 125; Grose S. D. A. of 1854, pp. 351, 366. See 

V. Amirtamayi Dassi, 4 E. L. R. , O. C. , SaghavacJietii v. Thayammal, 9 M. L. 

1 ; Manmatha v. BoTiilli, 27 All., 406 ; T., 296 (where the widow had letters of 

Arunachela v. Muthu, 17 I. C, 586 ; administration). 



Lee. VI.] ALIENATION BY WIDOW. 151 

receiver, who may be the reversionary heir. His appointment as 
such is not by virtue of his reversionary right, but on a considera- 
tion of what is most for the benefit of the estate. (a) 

Although the widow may be removed from the management 
of the property, she will remain entitled to the rents and profits, 
which must be paid to her by the receiver. It is not competent to 
the Court to put the reversioner into possession assigning mainten- 
ance to the widow. (6) 

Where a widow gave up possession of property upon a claim 
being made to it, and refused to have anything to do with it, — ^it 
was held, that the reversioners were entitled to sue the widow and 
the person to whom she had given up possession for a declaration 
of their title, and that the proper course for the Court to adopt 
was, to appoint a manager to collect the assets of the estate, who 
should account for them to the Court, and the Court should hold 
them for the benefit of the reversionary heirs, (c) 

If a widow has alienated the property, and it is in the hands 
of a third person, the reversionary heirs may sue the grantee 
to prevent waste or destruction of the property, whether by 'widow" 
moveable or immoveable, (d) But they will have no cause 
of action unless they charge waste or injury to the property which 
may affect their rights as reversioners, (e) 

The proper persons to sue to restrain a widow from com- 
mitting acts of waste are the immediate reversionary heirs. {/) 

In Bama Soonduree Dossee v. Bama Soonduree Dossee{g) it 
was held, that persons, whose rights are only inchoate and 
remote, cannot bring such a suit. But, according to the ^^°i?" ^ 
later decisions, it seems that contingent reversioners may sue. 
sue. In Chottoo Misserv. Jemah Misser(h), Garth,C. J., 

(a) Goluk Monee Dassee v. Kishen- Byaalc, B. L. R., F. B. Bui., 48 ; Kama- 

persad Kanoongoe, S. J). A. of 1859, vadhani Venkata Subbayya v. Joysa 

p. 210 ; M. 8. Maharani v. Nand Lai Narasingappa, 2 M. H. C. R., 116. 

Misser, 1 B. L. R., A. C, 27 ; Rao (e) M. S. Suraj Bansi Kunwar v. 

Karum v. Nawab Mahomed, 14 Moo. Mahipat Sing, 7 B. L. B., 669. 

1. A., 198; Ouruvav. RangammalfSM. {f) Baj Lukhee Dabea v. Gokool 

L. T., 189 ; also Thanikachela v. Chunder Chowdhry, 13 Moo. I. A., 209, 

AUmelu, 16 M. L. T., 26 ; O. Venkanna 224 ; Kooer Oolab Sing v. Boo Kurun 

V. G. Narasinham, 4 L. W., 441. Sing, 14 Moo. I. A., 176; Jumoona 

(6) Nundlal Baboo v. Bolakee Bebee, Dassya Chowdhrani v. Bama Soonderai 

S. D. A. of 1854, pp. 351, 370 ; Goluk- Dassya Clmvdhrani, 3 I. A., 72 ; Gogun 

monee Dassee v. Kissenpershad Chunder Sein v. Joydoorga, S. D. A. 

Kanoongoe, S. D. A. of 1859, p. 210; of 1859, p. 620; Deo v. Dukharam, 

M. S. Lodhoomoona Dassee v. Gunesh 5 All., 532 ; Hemchunder v. Surnomoyi, 

Chunder Dutt, ib., 436 ; M. S. Maha- 22 Cal., 354 ; Bajomoyee v. Troyluhho, 

rani v. Nundlal Misser, 1 B. L. B., A. 29 Cal., 269 ; see also Specific Belief 

C, 27 ; Shama Soonduree v. Jumoona Act (I of 1877), s. 42, illustrations (e) 

Chowdhrain, 24 W. R., 86. and (/). 

(c) Radha Mohan Dhar v. Ram Das (g) 10 W. R., 301. 

Dey, 3 B. L. B., 362. (h) 6 Cal., 198. ^^^ 

(d) Gobindmani Dasi v. Sham Lai 



152 CONVERSION OF PERISHABLE PROPERTY. [LBC. VI. 

said : " It appears to me that this is one of that class of cases 
which are referred to in the Shivagunga case(a) as being ex- 
ceptions to the general rule, which is there laid down. In 
page 191 of the judgment their Lordships allude to suits brought 
against Hindu widows by presumptive reversioners to restrain 
waste and the like, as being ' suits of a very special class, which 
have been entertained by the Courts ex necessitate rei.' They 
expressly say that, in such cases, the reversioner cannot get a 
declaration of his own title as against third persons ; but he is 
permitted to sue as the presumptive heir, because, unless he were 
allowed to bring such a suit, there would be no means of preventing 
a widow from doing perhaps irremediable mischief to the estate. 
And suits like the present, it seems to me, come clearly within the 
principle of that exception." 

And if the immediate reversioner is colluding with the widow(6). 
Collusion °^ refuses without sufficient cause to sue(c), if his where- 

by imme- abouts are not known (d), or if such reversioner happens to 

diaterever- be a limited owner(e), the contingent reversioners may 
sioner. ^^^ ^ protect the estate. 

A stranger cannot sue, even with the consent of the heirs, or 
by making them parties(/) ; nor can an assignee of a reversionary 
heir, even though he is the next reversionary heir to the husband 
after the assignor.(gi) 

Where a trust is created for several persons in succession, as 
Conversion where there is a devise to one for life with remainder 
of perish- over(A), and the subject-matter of the trust consists of 

able pro- property of a wasting description, such as leaseholds or 

^^"^ ^' long annuities, and no authority is expressly given to the 

trustees to convert, the Court assumes that it was the intention of 
Indian Trusts the trust that the trust-estate should be converted into pro- 
Act, s. 16. perty of a permanent character, otherwise the interest of 

(o) Kattama Natchiar v. Dorasinga Mad., 195 ; Raghupati v. Tirumalai, 15 

Tever, 2 I. A., 169. Mad., 422 ; Chidambara v. Nallammal, 

(6) Naikramlatl v. Soorujbuns Sahee, 33 Mad., 410 ; Baja v. Vmed, 34 All., 

S. D. A. of 1859, p. 891 ; Shama Soon- 207 ; contra, Ishwar v. Janki, 15 All., 

diiree Chowdhrain v. Jumoona Chow- 132 ; Sri v. Surajbali, 24 AH., 82. 
dhrain, 24 W. R., 86 ; Retoo Raj Pandey ( / ) Brojo Kishoree Dassee v. Sree- 

V. Lalljee Pandey, lb., 399; Kooer nath Base, dW.B.., i^S. 
Goolab Sing v. Rao Kurun Singh, 14 (g) Raicharan Pal v. Pyari Mani 

Moo. I. A., 176, 193 ; Mahomed v. Dasi, 3 B. L. R., 0. C, 70. 
Krishnan, 11 Mad., 106; Jhula v. (h) See Lichfield v. Baker, 2 Beav., 

Kanta Prasad, 9 All., 441 ; Meghu v. 481 ; Crawley v. Crawley, 7 Sim., 427 ; 

Ram Khelawan, 35 AH , 326 ; Jhandu Sutherland v. Cooke, 1 Coll., 498 ; 

V. Tariff, 37 AH., 45 P. C. Johnson v. Johnson, 2 Coll., 441 ; 

(c) Ourulinga v. Ramalakshmamma, Fearns v. Young, 9 Ves., 549 ; Benn \. 
18 Mad., 53 ; Abinash v. Harinath, 32 Dixon, 10 Sim., 636 ; Oakesv. Strachey, 
Cal., 62. 13 Sim., 414 ; Re Shaw's Trust, L. E., 

(d) Kalicharan v. Rawihi, 1 A. L. 12 Eq., 124. Re Smith's Estate, 46 
J., 375. L. J. Ch., 205; Re Whitehead (1894), 

(e) Kandasami v. Akkammal, 13 1 Ch., 678. 



Lee. VI.] CONVERSION of perishable property. 153 

the reversioners will run the risk of being damaged or destroyed ; 
and it becomes the duty of the trustees, unless a contrary inten- 
tion appears from the instrument creating the trust, to convert 
the property into property of a permanent nature(a), and their 
omission to do so will be a breach of trust. (6) The doctrine will 
apply, though there are no trustees, but the bequest is made to the 
tenant-for-life directly, (c) The leading case on this point is Howe 
v. Earl of Dartmouih.(d) In that case a testator had be- 
queathed aU his personal estate to his wife for life with 5°^^"' 
remainders over ; part of the property consisted of annuities Dartmouth. 
and it was held, that they ought to be converted, and the 
proceeds invested in Government securities. Lord Eldon said : 
" Unless the testator directs the mode, so that it is to continue as 
it was, the Court imderstands that it shall be put in such a state, 
that the others may enjoy it after the decease of the first, and the 
thing is quite equal, for the bequest might consist of a vast number 
of particulars ; for instance, a personal annuity, not to commence 
in enjoyment tiU the expiration of twenty years from the death 
of the testator, payable upon a contingency perhaps. If in this 
case it is equitable that long or short annuities shoiJd be sold, to 
give everyone an equal chance, the Court acts equally as in the 
other case ; for those future interests are, for the sake of the 
tenant-for-life to be converted into a present interest, being sold 
immediately in order to yield an immediate interest to the tenant- 
for-life. As in the one case, that in which the tenant-for-life has 
too great an interest is melted for the benefit of the rest ; in the 
•other, that of which, if it remained in specie, he might never receive 
anything, is brought in, and he has immediately the interest 
of its present worth." In Pickering v. Pickering(e), where the 
property consisted of leaseholds. Lord Cottenham said, . 

p. 298 : " Very nice distinctions have been taken, and .' pickenng. 
must have been taken, in determiniag whether the tenant- 
for-life is to have the iacome of the property in the state in which 
it is at the time of the testator's death, or the income of the produce 
of the conversion of the property. The principle upon which all 
the cases on the subject turn is clear enough, although its applica- 
tion is not always very easy. 

"All that Howe v. Lord Dartmouth{f) decided — and that was 
not the first decision to the same efEect--is, that, where the residue 
or bulk of the property is left en, masse, and it is given to several 
persons in succession as tenants-for-life and remaindermen, it is 

(a) See DeSouza v. DeSouza, 12 (e) 4 My. & Or., 289. See also Good- 

B. H. C. E., 189. enough v. Tremamands, 2 Beav., 512 ; 

(6) Bate v. Hooper, 5 D. M. G., Be Crowther, Midgley v. Crowther 

338. (1895), 2 Ch., 56 ; but also Re SmiA, 

(c) House V. Way, 12 Jur., 958. Arnold v. Smith (1896), 1 Ch., 171. 

(d) 7 Ves., 137. (/) 7 Ves., 137. 



154 CONVERSION OP PERISHABLE PROPERTY. [LeC. VI ^ 

the duty of the Court to carry into effect the apparent intention 
of the testator. How is the apparent intention to be ascertained 
if the testator has given no particular directions. If, although, 
he has given no directions at all, yet he has carved out parts of the 
property to be enjoyed in strict settlement by certain persons, it 
is evident that the property must be put in such a state as will 
allow of its being so enjoyed. That cannot be, unless it is taken 
out of a temporary fund and put into a permanent fund. But 
that is merely an inference from the mode in which the property 
is to be enjoyed, if no direction is given as to how the property is 
to be managed. It is equally clear that if a person gives certain 
property specifically to one person for life, with remainder over 
afterwards, then, although there is a danger that one object of his 
bounty will be defeated by the tenancy-for-life lasting as long as 
the property endures, yet there is a manifestation of intention 
which the Court cannot overlook. If a testator gives leasehold 
property to one for life, with remainder afterwards, he is the best 
judge whether the remainderman is to enjoy. The intention is 
the other way, so far as it is declared, and the terms of the gift, as 
a declaration of intention, preclude the Court from considering 
that he might have meant that it should be converted. Those 
two kinds of cases are free from difficulty, but other cases of 
very great difficulty may occur in which it may be very doubtful 
whether the testator has left property specifically, but in 
which there are expressions which raise the question whether the 
property is not to be enjoyed specifically ; for, as the Master of 
the Kolls appears to have observed in the present case, the word 
' specific,' when used in speaking of cases of this sort, is not to be 
taken as used in its strictest sense, but as implyng a question whether, 
upon the whole, the testator intended that the property should be 
enjoyed in specie. Those are questions of difficulty, because the 
Court has to find out what was the intention of the testator as to 
the mode of management and as to the mode of enjoyment." 

The rule does not proceed upon the assumption that the 
testator intended his property to be sold, except so far as a testator 
may be presimied to intend that which the law will imply from 
the directions in his will. The rule proceeds upon this, that 
the testator has intended the enjoyment of perishable property by 
different persons in succession, and this can only be accomplished 
by means of a sale, (a) 

The rule will not apply if the property is specifically 
Exceptions • ■ ■ • /i\ j.t. i. j- 

fromrule. given to persons m succession(o), even though a dis- 
cretionary power of changing the property is given to the 

(o) Cafe V. Bent, 5 Hare, 34, per Younge, 550. 
Wigram, V. C. ; Vachall v. Roberts, 32 (6) DeSouza v. DeSonza, 12 B. H. 

Beav., 140 ; Vincent v. Newcombe, 0. R., 190. 



Lee. VI.] IMPARTIALITY OF TRUSTEE. 155 

trustees(a), for such a power is given to them with a view to the 
security of the property, and not with a view to vary or affect the 
relative rights of the legatees, and indeed shows that the property was 
intended to be converted. (6) So, the rule will not apply if it clearly 
appears that the author of the trust intended the property to be 
enjoyed in specie.{c) " The question," said Lord Langdale(«?), " does 
not depend on the legacy being specific or not, but you are to 
collect from the will whether the testator intended that the property 
should at all events be enjoyed by those in remainder after the 
expiration of the prior interest."(e) If the property is not to be 
converted untU a certain time has expired, the trustees will not be 
justified in converting it until that time arrives. {/) 

If there is no indication in the will that the property is not to 
be converted, there must be a conversion. (^) The leaning of 
the Judges of the Court of Chancery has been rather against, than 
in favour of, the application of the rule, and the effect of the later 
cases has been to allow small indications of intention to prevent 
its taking effect. (A) 

Where a testator, after giving estates in succession, empowered 
his trustees to retain all or any portion or portions of his trust- 
estate in the same state in which it should be at the time of his 
decease, or to sel-1 or convert the same, or any part thereof, into 
money in such manner and for such prices and under such terms 
and conditions as they should, in their absolute and uncontrolled 
discretion, think fit, it was held the case was taken out of the rule.(i) 

A trustee is bound to be impartial in executing the trust, 
and must not benefit one cestui que trust at the expense 
of another. Thus, where a testator by his will desired his te^mpar- 
trustees to give up his farm to his nephew, the plaintiff, if tial. 
the landlord would accept him as tenant ; and in that case Indian Trusts- 
he bequeathed to him the farming^stock ; and the testator > ^- ^7- 



(a) Lord v. Godfrey, 4 Mad., 455 ; negatiTe the effect of the rule, Lewin, 

In re SewelVs Estate, L. R., 11 Eq., 12th Edn., 334. 

80 ; Re Bland (1899), 2 Ch., 336. (g) Pickering v. Pickering, 4 My. & 

(6) Morgan v. Morgan, 14 Beav., Cr., 289 ; Morgan v. Morgan, 14 Beav. 

72 ; Re Llewellyn's Trust, 29 Beav., 173. 72 ; Craig v. Wheeler, 29 L. J. , Ch., 374, 

(c) Holgaie v. Jennings, 24 Beav., (h) Macdonald v. Irvine, L. R., 8. 
623 ; MacUe v. Mackie, 5 Hare, 70. Ch. Div., 121, per Thesiger, L. J. See 

(d) Hubbard V.Young, 10 Benv., 205. Re Pitcairn (1896), 2 Ch., 199; Re 

(e) And see Harris v. Poyner, 1 Game (1897), 1 Ch., 881 ; Lyons v. 
Drew., 181. That is, the bequest need ifams (1907), 1 I. R., 32. 

not be technically specific to entitle (i) Gray v. Siggers, L. R., 15 C. D., 

the tenant for life to enjoy the income 77. See also In re SevealVs Trusts, 

in specie ; see also Pickering v. Picker- L. R., 11 Eq., 80 ; Re Pitcairn (1896), 

ing, 4 M. & Cr., 299. The contrary 2 Ch., 199 ; Re Norrington, 13 Ch. D. 

decision in Mills v. Mills, 7 Sim., 501, (C. A.), 654 ; Re Blake, 29 Ch. B. (C. A.), 

is not good law. 913 ; Re Leonard, 29 W. R., 234. As to 

(/) Rowe V. Rome, 24 Beav., 276; directions to accumulate and to lay 

Green v. Britten, 1 DeG. J. & S., 655. out the income in land, see Lewin, 

See further as to expressions which 12th Edn., 1336. 



156 DISCRETION OP TRUSTEE. [LeC. VI. 

also gave some real property to the plaintiff, and gave legacies and 
annuities to the plaintiff's father, mother, and sisters, and other 
persons including the trustees, one of whom was steward to the 
landlord, and there were hardly any assets to pay the legacies and 
annuities, if the plaintiff took the farming-stock, upon which the 
trustees represented the case to the landlord, who left it to their 
decision whether the plaintiff should be accepted as tenant; and 
they accordingly refused to let him be accepted, unless he executed 
a deed making over the devised real estate to pay the legacies and 
aimuities, — ^it was held, that it was a breach of trust on the part 
of the trustees to endeavour to induce the landlord to refuse his 
consent to the plaintiff having the tenancy, and that the deed must 
be set aside. James, L. J., said : " The trustees honestly believed 
that the testator had made a mistake. Still they were the trustees 
of that will, and their duty was to carry its trusts into effect impar- 
tially ; they had no right to use the power given to them by their 
position as trustees ; or any other power which they had, as a means 
of making a new will for the testator ; for that is what their proceed- 
ings come to. . . . It was a breach of duty on the part of 
the trustees to endeavour to induce the landlord to refuse his consent 
on any grounds to what the testator showed by his will that he 
wished and intended."(a) 

If the author of the trust has reposed a discretionary power 

in the trustees, either to do or to abstain from doing certain 

^f ^t^'^^'tees things, the Court has no power or jurisdiction to control the 

not inter- trustees in the exercise of their discretion, so long as they act 

fered with. in good faith, and their determination is not influenced by 

Jj>^d^ian Trusts improper motives.(6) "If," said Wigram, V. C.(c), "the 

^g. ' ' gift be subject to the discretion of another person, so long 

as that person exercises a sound and honest discretion, I 

am not aware of any principle or authority upon which the Court 

should deprive the party of that discretionary power where a 

proper and honest discretion is exercised." ' And in the case 

of Gisborne v. Gisborne{d) Lord Cairns said : "No doubt various 

cases have occurred in the Court of Chancery, in which, either 

from the trustees submitting to the Court the question of how they 

ought to exercise a power or a trust reposed in them, or from 

questions having been raised by the parties interested as to whether 

a trust for maintenance or a similar trust had actually arisen and 

ought to be acted upon, decisions have been arrived at by the 

Court which I should be very unwilling to throw the least doubt 

upon ; but those decisions appear to me not at all to touch the 

present case, where, as I shall submit to your Lordships, you have 

the trustees made the absolute masters of the question, where you 

(a) Ellis V. BarJeer, L. R., 7 Ch., 104. (c) Coatabidie v. Costabidie, 6 Hare, 

■" (6) See the cases collected, Lewin. 414. 
12th Edn., 765. (d) L. R., 2 App. Cas., 300. 



Lee. VI.] DISCRETION OF TRUSTEE. 157 

have them armed with a complete and uncontrolled discretion, 
and where they come before you stating that they are prepared to 
exercise that discretion within the limits within which it is con- 
fided to them by the will."(a) 

Thus the Court will not interfere with the exercise of a discre- 
tionary power of selecting particular objects of the trust. (6) 
For instance, where property was devised to trustees upon Selecting 
trust for such of the testator's children and grandchildren, trust.*" 
or nephews and nieces, as the trustees should think fit, and 
the trustees gave all to one, the Court refused to interfere, (c) So the 
Court will iftt interfere with a power of sale given to trustees(rf), 
or with a discretionary power to abstain from paying a legacy, (e) 
So, where a testatrix left £1,000 upon a condition precedent, but 
" left her executor at liberty to give the said sum it he found the 
thing proper," the Court refused to interfere, saying : " The 
executor says he did not think it proper to advance the legacy. 
Nothing appears in the conduct of the young man which disquali- 
fied him from taking, but it would be quite contrary to the provi- 
sions of the will to hold, that the power given to the executor at 
his discretion to advance the legacy, gave the legatee a right to 
claim it absolutely. If that were so, the condition in the will, and 
the power given to the executor of dispensing with it, would be 
frustrated. Is the Court to decide upon the propriety of the 
executor withholding the legacy ? That would be assuming an 
authority which is confided by the will to the discretion of the 
executor. It would be to make a will for the testator instead of 
expounding it."(/) 

And the Court will not interfere with the trustees' discretion 
as to one of several authorized modes of investment(^), 

although the result may be to vary the relative rights of }'^°^^^ °* ^ 
,1 ^ ■ ^ ^ ^/ix Tj 1- • J- i 5 "^ "i investment, 

the cestuis que trustent.yh) If, however, mfants are inter- 
ested, the Court will interfere if the proposed securities are clearly 
unsafe, (i) Nor will it interfere with the discretion of the trustees 



(a) See also Brophy v. Bellamy, L. R., (c) Civil v. Rich, 1 Ch. Cas., 309. 

8 Ch., 798 ; Marquis Camden v. Murray, See also Mawjibai v. Muljibai, 4 Bom. 

L. R., 16 C. D., 161; Thomas t. L. R., 199 

Williams, 24 Ch. D., 558 ; Re Blake, (d) Thomas v. Bering, 1 Kee., 729. 

29 Ch. D. (C. A.), 913 ; Re Courtier, 34 (e) In re Cos's Trusts, 4 K. & J., 

Ch. D. (C. A.), 136 ; Re Burrage, 62 199 ; Train v. Clapperton (1908), A. C. 

L. T. N. S., 752 ; Re Lever, 76 L. T. N. (H. L.), 342. 

S. (C. A.), 71. (/) Pink v. DeThuisey, 2 Madd., 

(6) Horde v. The Earl of Suffolk, 2 157. 

M. & K., 59 ; Holmes v. Penney, 3 K. & (g) Lee v. Toung, 2 Y. & C. C. C, 

J., 103 ; Re Wilke's Charity, 3 Mae. & 532. 

G., 440 ; Re Lea, 34 Ch. D., 528 ; Shul- (h) Minet r. Lermn, 20 Beav., 269 ; 

dham v. Royal National Lifeboat Ins'i- 7 D. M. 6., 340. 

tititow, 35W. R.,710; Warren v. Clat- (») Bethell v. Abraham, L. R., 17 

eeji (1898\. I L R. (0. A.), 127. Eq., 24. 



158 DISCRETION OF TRUSTEE. [LeC, VI. 

as to maintenance of children(a), unless it thinks that the discretion 
is not being properly exercised for the benefit of the infants.(6) 
Where the trustees had " an uncontrolled and irresponsible discre- 
tion," the Court refused to interfere, there being no proof of maM 
fides, although the trustees did not appear to be acting judiciously, (c) 
And the Court will not interfere with the mode of executing the 
trust, (d) When a scholarship was to be awarded to the best candi- 
date at an examination, the trustees were allowed to withhold the 
scholarship from the candidate that obtained the highest number 
of marks, on the ground that the scholarship was too valuable for 
his deserts, (e) But where the power is accompanied^ with a duty 
and meant to be exercised (as a power of leasing), the Court will 
compel the execution, or execute it in the place of the trustees. 
So, where the trustees had a power-of-sale '' if they should consider 
it advisable but not otherwise," it was held, that the power, though 
discretionary in form, was given to the trustees for the purposes 
of the will, and if those purposes could not be effected without the 
exercise of the power, they were bound to exercise it.(/) When 
such a power is conferred upon trustees to be executed by them 
at a fixed period, and after they have come to a judgment as to the 
conduct of the individual to be affected, they cannot divest them- 
selves of the power, or execute it until the time appointed ; nor 
can they enter into any anterior contract respecting it.{g) 

Where a trustee had an absolute discretion to apply the 

. trust-funds for certain charitable purposes as he might 

power by think fit, and he died without exercising the power inter 

-will. vivos, but by his will gave definite directions as to the 

application of the funds, it was held that the power was 

duly exercised. (^) 

Trustees to whom discretionary powers are given, are not 
bound to state their reasons for exercising the powers in a particular 
way. But if they do state their reasons, and it appears that their 
premises are wrong, the Court will then set aside the conclusion, (t) 

(o) Collins V. Vining, C. P. Coop., N. R., 557 ; Ee Bryant (1894), 1 Ch., 

472 ; Brophy v. Bellamy, L. R., 8 Ch., 324 ; Ee Burrage, 62 L. T. N. S., 752 ; 

798. See also Re Bryant {ISU), I Ch. Ee Courtier, Si Ch. D. {C. A.), 136. 
324. (g) Weller v. Ker, L. R., 1 So. App., 

(5) In re Hodges, Davey v. Ward, 11 ; Chambers v. Smith, 3 Ap. Cas., 

L. R., 7 Ch. Div., 762; Be Roper's 195 ; Saulv. Pattinson, SiW. B,., 562; 

Trusts, 11 Ch. D., 272. Ee Wise (1896), 1 Ch., 281. 

(c) Tabor V. Brookes, L. R., 10 Ch. (A) Lewin, 12th Edn., 769, citing 
Div., 273 ; see also Marquis Camden v. Copinger v. Grehane, I. R., 11 Eq., 
Murray, L. R,, 16 C. D., 170. 429. 

(d) Mahon v. Savage, 1 Sch. & Lef., (i) Re Wilhe's Charity, 3 Mad. & G., 
111. 441 ; King {The) v. The Archbishop of 

(e) Eoohe v. Dawson, 66 L. J. Ch., Canterbury, 15 East, 117 ; Paramanand 
31. V. Baptist Mission Society of London, 

(/) Tempestv.LordCamoys,^.TS., 8 C. W. N., 921. 
1867, p. 296; Nickisson v. Cockell, 2 



Lee. VI.] DELIVERY UP OF MOVEABLES. 159 

A trustee cannot set up a title to the trust-property adverse 
to that of his cestui que trust. In Lord Portsmouth v. 
Vincent{a), tenants-at-will, who came into possession Trustee 
under a letting by a receiver in the Court of Chancery, up"titleto' 
were, by the neglect of the parties in the cause, allowed to trust-pro- 
remain in possession for a great number of years, and were perty. 
not called on for their rent ; they levied fines, and insisted yf^t s" 14"^'* 
on them as a bar : but Lord Hardwicke said : " No, you 
gained that possession as tenants under the receiver of the Court ; 
you gained that possession therefore in confidence, and you shall not 
by means of that possession, defeat the title of the persons for 
whom you had the possession," and he would not suffer the fine 
and non-claim as a bar.(6) " Where," said Knight Bruce, V. C, 
" a person knowingly and expressly acquires the possession of 
property as a trustee merely, or being in possession makes himself 
by contract, expressly and without qualification, a trustee of it, 
he cannot be allowed effectually to assert against the trust, at least 
as a defendant in a suit seeking the performance of the trust, any 
title paramount and adverse to the trust which he may himself 
have ; he must assert it (if at all) without deriving — ^he must assert 
it so as not to derive — any advantage for it from the possession 
which he has as trustee, or had in that character, "(c) , 

If, however, the trustees become aware of a title in a third 
person to the trust-property, and the cestuis que trustent 
are entitled to claim the property absolutely, the trustees ^w^T^^ 
may refuse to dehver over the fund untU the question is 
settled. ((Z) And trustees cannot set up the adverse title of a third 
person against their cestuis que trustent. {e) 

A trustee who sets up a title to moveable property may be 
compelled to deliver it up to his cestui que trust. The 
Specific Rehef Act (I of 1877), s. 11, provides, that " any Delivery up 
person having the -possession or control of a particular pimt^ 
article of moveable property, of which he is not the owner, 
may be compelled specifically to deliver it to the person entitled to 
its immediate possession, when the thing claimed is held by the 
defendant as the trustee of the claimant ; " and the following 
illustration is given : " A, proceeding to Europe, leaves his furni- 
ture in charge of B as his agent dming his absence. B, without A's 

(o) CSted in Lord Pomfret v. Lord bai, 1 Bona. L. R., 721 ; Srinivasa v. 

Windsor, 2 Ves., 476. Venkata Varada, 34 Mad., 257 P. C. ; 

(&) See Kennedy v. Daly, 1 Soh. & Thuppan fjambudripad v. Ittickeri, 

Lef., 381 ; Stone v. Godfrey, 5 D. M. G., 37 Mad , 373 ; BUto Kunwar v. Kesho 

76 ; Conry v. Oauljield, 2 Ball & B., Pershad, 19 All , 277 P. C. 

272 ; Langley v. Fisher, 9 Beav., 90 ; (c) Attorney-Oeneral v. Munro, 2 

Newsome v. Flowers, 30 Beav., 461; DeG. & Sm., 163. 

Frith V. Cartland, 2 H. & M., 417 ; (d) Neale v. Davis, 5 D. M. G., 258. 

Suboodra Beebee v. Bikromadit Singh, (e) Newsome v. Flowers, 30 Beav., 

14 S. D. A., 543 ; Ardeshir v. Bai Sirin- 461. 



160 



TRUSTEE TO KEEP ACCOUNTS. 



[Lec. VI. 



Failure of 
cestui que 

trust. 



authority, pledges the furniture to C, and C knowing that B had no 
right to pledge the fumitui-e, advertises it for sale. C may be com- 
pelled to deliver the furniture to A, for he holds it as A's trustee." 

It may happen that there is no cestui que trust to claim the 
property, and no person to claim it through the settlor. 
According to Englidi law, before the Intestates Estates Act, 
1884:(a), there was no escheat of a trust in fee of lands(6), 
and the trustee retained the estate (c) if a cestui que trust 
under that statute dies intestate without next-of-kin, the trust- 
property goes to the Crown.(d) I am not aware of any case in 
which the question has been raised in this country, but the general 
prerogative of the Crown to all heirless property, subject however 
to any trust or charge properly created, will prevail, (e) 

It is the duty of trustees to afford to their cestuis que trustent 
accurate information of the disposition of the trust-fund — 
all the information of which they are, or ought to be, in 
possession(/ ) ; and to keep clear and distinct accounts of the 
property, (g') " It is the first duty of an accounting party,, 
whether an agent, a trustee, a receiver, or an executor, for 
in this respect they all stand in the same position, to be constantly 
ready with his accounts."(fe) And if the trustees destroy books of 
account, very cogent reasons must be given to satisfy the Court 
that the destruction was proper or justifiable.(i) In the case of a 
trust for sale, the cestuis que trustent have a right to say to their 
trustees — " What estates have you sold ? What debts have you 
paid ? And those who claim imder them have the same right."(_7 ) 

If a trustee chooses to mix his accoimts with those of his own 
trading concern, he cannot thereby protect himself from producing 
the original books in which any part of those accounts may be 
inserted. (S) If a trustee adopts and sanctions improper accounts 
by his co-trustee, he will be liable for any default.(i) A legatee 



Trustee 
to keep 
accounts. 
Indian Trusts 
Act, s. 19. 



(a) 47 & 48 Vic, c, 71, s. 4. 

(6) Burgess v. Wheats, 1 Eden., 176. 

(c) Taylor v. Haygarth, 14 Sim., 16 ; 
Davall V. The New Siver Co. , 3 DeG. & 
Sm., 394 ; Cox v. Parker, 22 Beav , 168. 

{d) See Lewin, 12th Edn., 315. 

(e) See Collector of Maaulipatam v. 
Gavaly Venkata, 8 Moo. I. A. , 500 ; 
Cavaly Venkata v. Collector of Maauli- 
patam, 8 Moo. I. A., 619 ; Oridhari 
V. Government of Bengal, 12 Moo. I. A., 
448 ; Sonet v. Mirza, 3 L A., 92. 

( / ) Walker v. Symmonds, 3 Swanst. , 
58 ; Burrows ^r. WaUs, 5 DeG. M. & 6., 
253 ; Re DaHnall (1895), 1 Ch. (C. A.), 
474. 

(3) Freeman v. Fairlie, 3 Mer., 43. 
See Orandumal v. Sitabai, 1 S. L. 
R., 263; Thackersey v. Hurbhum, 8 



Bom., 432. 

{h) Pearsev. Green, 1 Jac. & W., 140, 
per Sir Tliomas Plumer, M. R. : see 
also White v. Jackson, 15 Beav., 191 ; 
Jeffreys v. Marshall, 1 Q. W. R., 94 j 
Be Skinner (1904), 1 Ch , 289. The 
Court will give the trustee every indul- 
gence in clearing his accounts ; Banks 
V. Carkwright, 15 W. R, 417 ; Ganendra 
Mohan Tagore v. Vpendra Mohan 
Tagore, 4 B. L. R., O. C, 207. 

(i) Gray v. Haig, 20 Beav., 219. 

(j) Clarke v. The Earl of Ormonde, 
Jac., 120. 

(i) Freeman v. Fairlie, 3 Mer., 
43. 

(1) Eorton V. Brocklehvrst, 29 Beav., 
604 ; Brazier v. Camp, 63 L. J. Q. B., 
637. 



Lee. VI.] GOOD FAITH. 161 

has a clear right to have a satisfactory explanation of the state 
of the testator's assets, and an inspection of the accounts(a) but 
he is not entitled to a copy at the expense of the estate.(6) 

When all the matters relating to the trust have been finally 
settled, the trustees are entitled to the possession of the ^ . 
vouchers, as their discharge to the cestuis que trustent, who, 
however, will have a right to inspect them, and to take copies at 
their own expense, (c) 

If the inability or refusal of the trustees to account renders a 
suit necessary, they must pay the costs of it.(d) The „ 
matter of costs, however, is within the jurisdiction of the 
Court ; and if there has been no actual misconduct, the Court may 
limit the payment of costs to the period of bringing the action or 
of the hearing or otherwise according to the circumstances of the 
case.(e) 

In taking accoimts against a trustee when he is to be fixed 
with a personal liability, his good faith is to be considered, _ Af-fu 
and every fair allowance is to be made in his favour, 
especially if the demand against him is one which arose many years 
previously, and the cestui que trust was at the time cognizant of all 
the matters connected with it.(/) 

I may here refer to the question whether the managing member 
of a joint Hindu family can be sued for an account. The Manaeine 
manager of a Hindu family is " neither a partner nor a member o£ 
principal nor an agent of the family but a sort of representa- Hindu 
tive owner, his independent rights being limited on all sides ^™"y' 
by the correlative rights of others and burdened with a liability, 
co-extensive with his ownership, to provide for the maintenance 
of the family."(gf) His position is not analogous to anything 
known to English law. (A) 

The distinction, however, in the incidents of a joint family 
under the laws of the Dayabhaga and the Mitakshara has led to a 

(a) Ottley Y. Gilbey, 8 Beav., 602; Whitev. Jackson,15Bea,v., 191 ; Payne 

Re Tillot (1892), 1 Ch., 86 ; Re Dartnall v. Evens, L. E,, 18 Eq., 362. 

(1895), 1 Ch. (C. A.), 474. (/) M'Donelly. White, 11 H. L. Gas., 

(6) Ottley V. Gilbey, , supra ; see Re 670 ; and see Payne v. Evens, L. R., 

Bosworth, 58 L. J. Ch., 432. 18 Eq., 362. 

(o) Clarke V. Ormonde, Jac, 120. (j) Cowell, Tagore L. L. (1870), 108; 

(d) Pearse v. Green, 1 Jac. & W,, Chukan v. Poran, 9 W. E., 483 ('not 
135 ; Newton v. Askew, 11 Beav., 145 ; an agent with delegated authority in a 
Wroe V. Seed, 4 Giff., 425 ; Heugh v. fiduciary and accountable relation to 
Scard, 24 W. R., 51 ; Jeffreys v. Mar- the rest of the family ') ; Kandasami v. 
shall, 19 W. R,, 478 ; Re Skinner (1904), Somaskanda, 7 M. L. T., 165 : 20 M. L. 
1 Ch., 289. J., 371. 

(e) Springett v. Dashwood, 2 Giff., (h) Muhammad v. Badha Ram, 22 
521 ; Ottley v. Gilbey, 8 Beav,, 602 ; All., 307. 

Thompson v. Glive, 11 Beav,, 475 ; 

A, LT 11 



162 LIABILITY OF KARTA TO ACCOUNT. [LeC. VI. 

difference of judicial opinion. While under the Dayabhaga the 
position of the manager has been likened to that of a trustee in 
relation to the other members of the family, under the Mitakshara, 
the analogy is not recognised, (o) 

In Bengal the decisions on this point were conflicting ; but in the 
Full Bench case of Abhaya Chandra Boy Chowdhry v. Pycwi Mohan 
Guho(b), the question was decided in the affirmative. Couch, C. J., 
said : — " The members of a joint Hindu family are entitled to the 
family property, subject to such dispositions of it as the managing 
member is entitled to make, either by virtue of the power which 
is given hiiin by law as manager, or of the powers that may be 
given to him by the consent of the other members of the family. 
Subject to the exercise of these powers, and to any disposition of 
any portion of the family property which may have been made by 
virtue of them, the other members of the family are clearly interested 
in that property. It appears to me, that the principle upon which 
the right to call for an account rests, is not, as has been supposed, 
the existence of a direct agency or of a partnership, where the 
managing partner may be considered as the agent for his co-partners. 
It depends upon the right which the members of a joint Hindu 
family have to a share of the property ; and where there is a joint 
interest in the property, and one party receives all the profits, 
he is bound to account to the other parties, who have an interest 
in it, for the profits of their respective shares, after making such 
deductions as he may have the right to make. That appears 
to me to be the right principle, and it is the principle upon which 
the English Courts of Equity act in the case of joint tenants, and 
tenants-in-common, and not merely in cases of partners." And 
Phear, J., said : — " Every man, be he Tcarta of a joint Hindu family 
or not, who manages the property of- another person, or property 
in which another person is beneficially interested, upon the 
foimdation of a trust or confidence between the two, is, in a Court 
of Equity and Good Conscience, accountable to the latter for the 
mode in which he does manage it, and for the profits which he may 
have made out of it. The principle upon which I understand the 
English Courts of Equity to act upon in those matters is simply 
this,— that a person who has the control of, and management of, 
another's property upon the footing of anything which amounts 
to a confidence or trust reposed in him by that other, shall not 
be allowed to abuse that confidence, and to make a profit out of 
his management, without the owner's consent ; and inasmuch as 
the question whether or not a profit has been made, or what has 
been done, lies, under these circumstances, solely within the 
knowledge of the manager himself, a Court of Equity wiU make him 

(a) Balakrishna v. Mufhusami, 32 R., 1904. 
Mad., 271 ; Ghukan v. Poran, 9 W. R., (b) 5 B. L. R., 347. 

483 ; Ram Batlan v. Puran, 24 P. ' 



Lee. VI.] DUTIES of trustee as to investment. 163 

<iisclose what tie has done, in other words, will make him account for 
his administration of the property. It is the necessity for discovery, 
as the English lawyers term it, in order to protect the actual owner's 
right and interest which founds the jurisdiction of the English 
€ourts of Equity in cases of this sort." 

The rule of UabUity to account appUes only to a family governed 
by the Dayabhaga law. A member of an undivided family under 
the Mitakshara law who sues for partition and who has not been 
«xcluded from the family is not entitled to call upon the manager 
to accoimt for his past dealings with the family property, imless 
he establishes fraud or misappropriation on the part of the manager. 
AH that he is entitled to is an account of the family property at 
the time he asks for partition, (a) But where the manager excludes 
a, member from participation in the family property(6) or is made 
accountable under a special arrangement among the members of 
the family(c), the immunity does not apply. 

An individual member of a tarawad governed by the Maru- 
makkatayam nile has no right to an account from the kara- 
navan.(rf) 

We have now to consider what are the duties of a trustee 
with respect to the investment of trust-moneys, (e) In a Duties of 
properly drawn instrument creating a trust, express direc- trustee as 
tions will always be found as to the securities upon which t° invest- 
the trustee is to invest the trust-funds, and the trustee ™^"*- 
is boimd to adhere strictly to the modes of investment prescribed.(/) 
If he does not do so, he commits a breach of trust, and will be liable 
for any loss that may arise ; whereas, if he invests in the manner 
directed by the instrument of trust, he will not be liable in case 
of loss. But there are other cases where the instrument creating 
the trust is of an informal character, and does not contain any 
directions as to investment. It is the duty of the trustee to make 
the fund productive for the benefit of the persons interested, and 
in order to do so he must invest it in some form of security. And 

(a) Balakrishna v. Muthusami, 32 includes " (1) money passing into the 

Mad., 271; Narayan v. Nathaji, 28 hands of the trustees at the inception of 

Bom., 201 ; also Must. Parbati v. the trust ; (2) money belonging to the 

Naunihal, 31 AH., 412 ; Bliawani v. trust which is outstanding at its incep- 



9 C. L. J., 133 : 13 C. W. tion and is subsequently received by 

N., 309. the trustees ; (3) money received by 

(6) Krishna v. Subbanna, 7 Mad., the trustees as the proceeds of the 

564; Bhimram v. Sitaram, 19 Bom., conversion of trust-property." Lewin, 

532. 12th Edu., 343 note. 

(c) Ramabhadra v. Veerabhadra, 22 (/) Learoyd v. Whiteley, 12 App. 
Mad., 470 ; Shankar v. Hardeo, 16 Cal., Cas., 727 ; In re Cassumali Javerbhai, 
397. 30 Bom , 591 ; Thackersey v. Hurhhum, 

(d) Kunigaratu v. Arrangaden, 2 8 Bom., 432 ; see Ramanathan v. 
M. H. C. R., 12. Swaminatha, 23 M. L. J., 278; Abkan 

(s) The expression ' trust-moneys ' v. Saran, 38 Mad., 260. 



164 PERSONAL SEctmiTY. [Lec. VI. 

a trustee will not be justified in investing upon any but authorised 
securities, (a) 

If a fund is properly invested, it is a clear breach of trust for 
the trustees to convert it into money and invest the proceeds in 
unauthorized securities. (&) 

Trustees may not invest on personal security(c), even though 

larger interest may be gained, for such an investment is a 

se^cur^y. species of gaming((Z) ; and it makes no difference that the 

loan is on joint security. (e) A promissory note is evidence 

of a debt ; but it cannot be considered as a security for money.(/) 

The rule, that a trustee may not invest on personal security, is one 

that " should be rung in the ears of every person who acts in the 

character of trustee, for such an act may very probably be done 

with the best and most honest intention, yet no rule in a Court of 

Equity is so well established as this."(5f) 

And trustees leaving money outstanding on personal security 
in which the testator himself had invested, will be liable for any 
loss, unless they can show that an attempt to recover the money 
would have been fruitless, (h) 

Investments in the stock or shares of any private company 
are not justifiable without express authority, and the 
companies. trustees Will be liable for loss if the company fails or the 
shares become depreciated, (i) 

Trustees do not commit a breach of trust by lending out the 

trust-fund on personal security, if the instrument creating 

Where per- ^j^g ^j^g^ expressly authorizes such a mode of investment.( J ) 

rity allowed. ^^ ^he trustees are imperatively directed to invest in certain 

forms of investment, they are bound to obey the direction(i), 

and when there is an express authorization to allow money to remain 

on an unsatisfactory security, for the purpose of convaiiendng a 

purchaser, they will not be wrong in doing so.{l) But a power 

to place out the trust-fund at the trustees' discretion, will not 

(o) See In re Davis, Davis \. Davis Settlement (1899), 1 Ch. 593, where it 

(1902), 2 Ch. 314 DeSouza v. DeSouza, was held that with a reasonable 

12 B. H. C. R., 190 ; Tirupati Royudu prospect of repayment, trustees may 

V. Lakshmi Narasimha, 38 Mad., 71. lend on personal security. 

(6) Kellaway v. Johnson, 5 Beav., (h) Styles v. Guy, 1 Mao. & G., 422. 

319. (i) Trafford v. Boehm, 3 Atk., 439 ; 

(c) Walker v. Symonds, 3 Swanst., Mills v. Mills, 7 Sim., 501 : see as to 
63 ; Glough v. Bond, 3 M. & Cr., 496 ; investment on shares, Lewin, 12th 
Watts V. Girdlestone, 6 Beav., 188; Edn., 351; see Svhramania y. Prayoff 
Graves v. Stralmn, 8 D. M. G., 291. Doss, 33 I. C, 677. 

(d) Adye v. Feuilleteau, 1 Cox, 25. ( j ) Forbes v. Ross, 2 Bro. C. C, 430 r 

(e) Holmes v. Dring, 2 Cox, 1. Paddon v. Richardson, 7 D. M. G., 563. 
(/) Ryder V. Bickerton, 3 Swanst., (k) Cadoganv. Lord Essex, 2 Brew, 

81 (»), per Lord Hardwicke. 227 ; Re Wedderbum, 9 Ch. D., 112. 

(g) Holmes v. Dring, 2 Cox, 1, per (1) Re Hurst, Addison v. Topp, 63 

Lord Kenyon. But see Re Laing's L. T., 665. 



Lee. VI.] PERSONAL SECUEITY. 165 

justify an investment on such security, (a) So a power to invest 
upon such security as to the trustees seems expedient(6), or on the 
" best and most sufficient security"(c), or " on good private secu- 
rities"(<Z), will not justify investments on personal security. Nor 
will a trust to place the trust-fund " out to interest or other way 
of improvement" authorize an investment in trade. (e) And a 
trust to invest at " the discretion of the trustees " will not justify 
them in investing in securities of foreign states, even though the 
testator approved of such investments.(/) "Where the trustees of 
a sum of money for A for life, remainder for her children, were 
authorized by the settlement to lend the trust-fund upon such real 
or personal security as should be thought good and sufficient, and 
the trustees lent it to a person in trade whom A had married, and 
the money was lost, they were made responsible for the amount. 
Sir W. Grant, M. R., said : " The authority did not extend to an 
accommodation ; it was evident the trustees had, upon the marriage, 
been induced to accommodate the husband with the sum which 
they had no power to do."(5r) The liability of the trustees is all 
the greater when they lend in consideration of a bribe. (A) 

Where trustees of a marriage-settlement were authorized, 
with the consent of the husband and wife, to invest the funds on 
such security, " either real or personal," as they, with such consent, 
should think proper, and at the date of the marriage, part of the 
trust-funds were outstanding on the security of the husband's 
note-of-hand, the Court allowed the investment to be continued on 
the husband executing a bond to the trustees for the amount of 
the loan.(i) 

Trustees must not invest in such a manner as to benefit one 
or more of the cestuis que trustent without having regard 

to the interests of the others. If they do so, and any loss qutiwT 

results, they will be liable.(j) Even where the written not to be 

consent of the tenant-for-life is required to a change of benefited at 
investment, the trustees are bound, if the fund is impro- othe"s^^ 
perly invested, to re-invest it so as to protect the interests of 

the remainder- men, although the tenant-for-life objects to the 
re-investment. (A;) 

(a) Pocock V. Reddington, 5 Ves., also Boss v. Godsall, 1 Y. & C. C. C, 

794 ; Bethell v. Abraham, L. R., 17 Eq., 617. 

24. (h) Re Smith, Smith v. Thompson 

(6) Attorney-General v. Higham, 2 (1896), 1 Ch., 71. 

Y. & C. C. C, 634. (i) Pickard v. Andersov, L. R., 13 

(c) Mills V. Osborne, 7 Sim., 30. Eq., 608. 

(d) Westover v. Chapman, 1 Coll., {j) Raby v. Ridehalgh, 1 Beav., 109, 
177. per Turner, L. J. ; StuaH v. Stuart, 

(e) Cocfcv.Good/eZZow, 10 Mod., 489. 3 Beav., 430; Re Dick (1891), 1 Ch. 
( /) Bethell v. Abraham, L. R., 17 (C. A.), 423 : H. L. (1892), A. C, 112 ; 

Eq., 24. Mara v. Browne (1895), 2 Ch., 83. 

((7) Lewin, 12th Edn., 348, citing (k) Harrison v. Thexlcii, 4 Jur. N. 

Langston v. Ollivant, G. Coop., 33 : see S., 550. 



166 VAEYING SECURITIES. [LeC. VL 

Wheie the instrument of trust contains a power of investment. 
Consent of ^^* requires the consent of any of the cestuis que trustmt or 
cesiuis que of the trustees, to the investment or to a change of securi- 
trustent to ties, all the conditions of the power must be strictly followed, 
change. j£^ however, the terms of the power have not been complied 

with, a cestui que trust, who is sui juris, and who has acquiesced 
in the investment, cannot afterwards make any complaint, (a) 

So if the power authorizes an advance to three on a joint 
interest, an advance to two is not justifiable.(&) 

. . In some cases trustees may continue existing invest- 

investment. ments, but they should be careful to see that the securities 
are good.(c) 

" Trustees may, as they generally are, be expressly empowered 
. to invest on real as well as Government securities, and 

secai^es where this is the case, and there is a power to vary securi- 

ties, the trustees may safely sell out Government securities, 
and invest the proceeds on a mortgage ; for, in this case, although the 
tenant-for-li£e may obtain a higher rate of interest, yet no injury 
is done to the remainder-man, as the capital is a constant quantity ,^ 
and if the tenant-for-life live long enough, he himself will have the 
benefit. A notion is sometimes entertained that where the stock 
has become depreciated since the original purchase of it by the 
trustees, the trustees cannot sell out the stock and lend the money 
on mortgage without being answerable for the difference between 
the bought and the sale price. But there is no ground for this 
apprehension, for if the trust authorize the purchase of stock at 
aU, the trustees cannot be wrong in deaUng with it at the market- 
price of the day. No doubt if there were a sudden fall imder 
peculiar circmnstances, the trustees should not, without good 
reason, sell out at the very moment of casual depreciation ; but if 
the power be bond fide exercised, the mere fact of a depreciation 
below the bought price cannot per se constitute a breach of 
duty."(d) 

Where trustees are empowered to invest on mortgage, they 
should not, in the case of land, invest more than two-thirds 
Investment gf ^^e actual value of the estate ; in the case of houses, not 
gage. ' more than one-half. And they should not invest in lease- 

holds under any circumstances, as these are wasting securities. 
Nor should they, under any circumstances, invest on the security 
of a second mortgage, (e) 

(a) See Lewin, 12th Edn., 349. 379 ; Be Chapman (1896), 2 Ch. (C. A.), 

(6) Fowler v. Beynal, 3 Mao. & G., 763. 

500. (d) Lewin, 12th Edu,, 371, see In re 

(c) Arnould t. Gritislead, W. N., Pope's Contract (1911), 2 Ch., 442. 

1872, p. 216 ; Angerstein v. Martin, T. (e) See further as to investment , 

& R., 239 ; Ames v. Parkinson, 7 Beav., Lewin, 12th Edn., Ch. XIV, s. 4. 



Lee. VI.] 



INVESTMENT OF TRUST-MONEY. 



167 



Trustees 
may not 
lend to 
themselves. 



Trustees empowered to lend the trust-funds on mortgage may 
not lend to one of themselves, (a) The reason is, that there is 
the possibility of a conflict between the trustees' duty and 
interest, and the cestuis que trustent are entitled to have the 
impartial judgment of all the trustees as to the sufficiency 
of the security. (6) 

Trustees must be careful, when they advance money on 
mortgage, not to pay over the money to the mortgagor until ^o^toleJ?"^ 
the security is ready, for in case of loss by fraud they will be money, 
personally liable, (c) 

The Court will not, so long as an estate remains to be adminis- 
tered in it, allow a purchase, or a mortgage, or any other 
investment to be made, unless the Court is satisfied of its courtto°' 
safety. The reason is, that the Court has to protect the investment, 
property for all claimants, and even where the trustees have 
an undisputed power to make a purchase, or to make a mortgage, a 
reference is usually made to ascertain the propriety of the invest- 
ment in all respects. ((Z) 

In England, the duties of trustees as to investment are defined 
by various Statutes, (e) The Indian Trusts Act(/) makes provision 
for particular securities : 

" Where the trust-property consists of money and cannot 
be applied immediately or at an early date to the 
purposes of the trust, the trustee is bound (subject 
to any direction contained in the instrument of 
trust) to invest the money on the following securities 
and on no others: — 

{a) in promissory notes, debentures, stock or other securities 
of the Government of India, or of the United Kingdom 
of Great Britain and Ireland ; 

(b) in bonds, debentures and annuities charged by the 
Imperial Parliament on the revenues of India ; 

Provided that after the fifteenth day of February, 1916, no 
money shall be invested in any such annuity being a terminable 



Investment 
of trust- 
money. 
Indian 
Trusts Act, 

SS. 20-21. 



(a) See Exparte Lacey, 6 Ves., 625 ; 
Bath T. Standard Land Co. Ld., (1911), 
1 Ch., 618; Lagunas Nitrate Co. v. 
Lagwnas Syndicate (1989), 2 Ch., 618 ; 
Costa Bica By. Co. v. Forwood (1901), 
1 Ch., 746. 

(6) Stickney v. Sewell, 1 M. & Cr. 

8 ; V. Walker, 5 Rusa., 7 ; 

Francis v. Francis, 5 D. M. G., 108; 
Fletcher v. Green, 33 Beav., 426. 

(c) Bowland v. Witherden, 3 Mac. & 
G., 568 ; Hanhury v. Kirkland, Sim., 



265 ; Broadhvrst v. Bdlguy, 1 Y. & C. C. 
C, 16; Re Speight, 22 Ch. D. (C. A.), 
727; Robinson v. Harkin (1896), 2 
Ch., 415. 

(d) Bethell v. Abraham, L. R., 17 
Eq., 27, per Jessel, M. R. 

(e) See Lewin, 12th Edn., 356. 

(/) As amended by Acts I of 1916 
and XXI of 1917. See also section 
20A in Appendix of Acts, post. See 
Trustee's and Mortgagee's Powers Act 
(XXVIII of 1866), SS. 5, .32. 



168 INVESTMENT OP TRUST-MONEY. [LeC. VI. 

annuity, unless a sinking fund has been established in connection 
with such annuity ; but nothing in this proviso shall apply to 
investments made before the date aforesaid. 

(bb) In India three and a half per cent, stock, India three 
per cent, stock, India two and a half per cent, stock 
or any other capital stock which may at any time 
hereafter be issued by the Secretary of State for 
India in Council under the authority of an Act of 
Parliament and charged on the revenues of India ; 

(c) in stock or debentures of, or shares in, Eailway or other 

Companies the interest whereon shaU have been 
guaranteed by the Secretary of State for India in 
Council or by the Government of India or in deben- 
tures of the Bombay Central Co-operative Bank, 
Limited, the interest whereon shall have been 
guaranteed by the Secretary of State for India in 
Council ; 

(d) in debentures or other securities for money issued, under 

the authority of any Act of a Legislature established 
in British India, by or on behalf of any municipal 
body, port-trust or city improvement trust in any 
Presidency-town, or in Rangoon Town, or by or on 
behalf of the trustees of the port of Karachi ; 

(e) on a first mortgage of immoveable property situate in 

British India : provided that the property is not a 
leasehold for a term of years and that the value of 
the property exceeds by one-third, or, if consisting 
of buildings, exceeds by one-half, the mortgage 
money ; or 

(/) on any other security expressly authorized by the 
instrument of trust, or by any rule which the 
High Court may from time to time prescribe in this 
behalf : 

Provided that, where there is a person competent to contract 
and entitled in possession to receive the income of the trust-property 
for his life, or for any greater estate, no investment on any security 
mentioned or referred to in clauses (d), (e) and (/) shall be made 
without his consent in writing." 

These rates " do not apply to investments made before this Act 
comes into force, or shall be deemed to preclude an investment on 
a mortgage of immoveable property already pledged as security 
for an advance under the Land Improvement Act, 1871, or, in 
case the trust-money does not exceed three thousand rupees, a 
deposit thereof in a Government Savings Bank." 



Lee. VI.] REMEDY IN CASE OF NON-INVESTMENT. 169 

Where trustees are bound by the terms of their trust to invest 
the money in the public funds, and instead of doing so, 
retain the money in their hands, the cestuis que t/rustent may casTof non- 
elect to charge them, either with the amount of the money investment, 
and interest, or with the amount of the stock which they 
might have purchased with the money, (a) The doctrine of the Court, 
when it appHes this rule, is, that the trustee shall not benefit by his 
■own wrong. If he had done what he was bound to do, a certain 
amount of Government securities would have been forthcoming 
for the cestuis que trustent. And therefore, if called upon to have 
such securities forthcoming, he is bound to do so ; just as, in 
ordinary cases, every wrong-doer is bound to put the party injured, 
so far as the nature of the case allows, in the same situation in 
which he would have stood if the wrong had not been done.(6) 

But the grounds on which the right of election in the cestuis 
que trustent rest, wholly faU in a case where a trustee, having an 
option to invest in Government securities, or on the security of 
immoveable property, neglects his duty and carelessly leaves the 
trust-funds in some other state of investment. In such a case, 
the cestui que trust cannot say to the trustee — " If you had done 
your duty, I should now have had a certain sum in Government 
securities, or the trust-fund would now consist of a certain amoimt 
of Government securities." It is obvious that the trustee might 
have duly discharged his duty, and yet no such result need have 
ensued. In such a case the trustee is liable for the principal and 
interest only.. "Where a man is bound by covenants to do one of 
two things, and does neither, there in an action by the covenantee, 
the measure of damage is in general the loss arising by reason of 
the covenantor having failed to do that which is least, not that 
which is most, beneficial to the covenantee : and the same principle 
may be applied by analogy to the case of a trustee failing to invest 
in either of two modes equally lawful by the terms of the trust. 
. The trustee is not called upon to exercise an option 
retrospectively, but is made responsible for not having exercised 
it at the proper time, for not having made one of two several kinds 
•of investment. And a reason for his being in such a case charge- 
able only with the money invested, and not with the Government 
securities which might have been purchased, is, that there never 
was any right in the cestui que trust to compel the purchase of 
Government securities. The trustee is answerable for not having 
done what he was bound to do, and the measure of his responsibility 
should be what the cestui que trust must have been entitled to in 
whatever mode that duty was performed, "(c) In Raphael v. 



(a) Shepherd v. Mouls, 4 Hare, 503 ; M. G., 256. 
Byrchall v. Bradford, 6 Madd., 235; (c) Robinson v. Robinson, ibid. j;e»- 

Robinson v. Robinson, 1 D. M. G., 247. Lord Cranworth, L. C. 

(6) Robinson v. Robinson, 1 D. 



170 



REMEDY IN CASE OF WRONGFUL INVESTMENT. [LBC. VI. 



Boehm(a) Lord Eldon said : " Where there is an express trust tc 
make improvement of the money, if the trustee will not honestly 
endeavour to improve it, there is nothing wrong in considering him 
as the principal to have lent it to others, and as often as he ought 
to have received it and lent it to others, if the demand be interest, 
and interest upon interest." The case was re-argued before Lord 
Ersldne, who agreed with Lord Eldon(6) ; and Lord Eldon subse- 
quently expressed his opinion that his original judgment was 
right, (c) Where a trustee who was directed to invest the residue 
of his testator's estate in consols, and to accumulate the dividends, 
invested it on mortgage of real estate, he was held hable to make 
good the amount of stock which would have been purchased in 
consols, together with the amount of accumulation which would 
have been produced' by a proper investment of the dividends of 
such stock. (5) 

When the accumulation was directed oiJy during the minority 
of a beneficiary, the fund going over at 21, and the trustee 
neglects to hand it over or to invest it on the determination of 
minority, he will be liable for compound interest, (e) When the 
trust-moneys have been employed in trade, recent authority inclines 
to compound interest as the proper measure of liability.(/ ) 

So an executor who neglects to pay debts, or who, after pajing 
debts and legacies, neglects to account for the surplus, or an assignee 
who neglects to pay dividends, will be liable to pay interest and 
it is no excuse that he himself derived no benefit from the moneys 
in his hands, (g') Where, however, an executor in good faith retained 
a balance to which he thought himself entitled, he was not charged 
with interest, (i^) 

If trustees having power to invest on certain securities, and 
Remedy *° '^^^Y ^^^^ investments from time to time, realize money 

in case of properly invested, for the purpose of investing it in a secu- 

wrongfui rity not warranted by the instrument of trust, the cestui que 

investmen . ^^^^^ ^^^^ ^^^ remedies : First, he may compel the trustees 
to restore the trust-fund to its original state. The Court will not 
treat the sale as lawful, and the investment as unlawful, so as ta 



(a) 11 Ves., 107. 
(6) 13 Ves., 407. 

(c) 13 Ves., 590 : see also Dornford 
V. Dornford, 12 Ves., 127. 

(d) Pride v. Fooks, 2 Beav., 430. 
See also Knott v. Cottee, 16 Beav.. 77 ; 
Wilson V. PtaJce, 3 Jur., N. S., 155 ; 
Re Barclay (1899), 1 Ch., 674. 

(e) Re Emmets' Estate, 17 Ch. D., 
142 ; also Re Barclay (1899), 1 Ch., 
674. 

( / ) Heighingion v. Grant, 5 M. & Cr., 



258 ; Jones v. Foxall, 15 Beav., 388 ; 
Walrond v. Walrond, 29 Beav., 586 ; 
Gilroy v. Stephens, 30 W. R., 745 ; but 
contia, Attorney-General v. Solly, 2 
Sim., 518 ; Bnrdiclc v. Garrick, L. R., 
5 Ch., Ap., 233. 

(g) See Lewin, 12th Edn, Ch. XIV., 
s. 5. 

{h) Brnere v. Pemberton, 32 Ves., 
SS6 ; Erans v. E^ans, 34 Ch. I). 
(C. A.), 597. 



Lee. VI.] TEUSTEE for sale or mortgage. 171 

satisfy tlie trust by replacing the money, but the whole will be 
treated as one unjustifiable transaction and the original security 
must be replaced, — ^that is to say, i£ the fimd was originally invested 
in Government securities, it will not be sufficient to refund the 
money realized by the sale ; but an equivalent amount of Govern- 
ment securities must be purchased(a) and the intermediate dividends 
must be replaced(6) ; or, secondly, the cestui que trust may require 
the trustees to account for the money received on the sale with 
interest if that would be most advantageous to him.(c) In Eng- 
land, the rate of interest is 5 per cent.{d) In this country it would 
be at the rate of 6 per cent., the Court-rate of interest. When 
trustees have committed a breach of trust by an improper sale of 
the trust-fund, they are not discharged from the consequences of 
the breach of trust by replacing the fund in some security, not the 
security the sale of which constituted the breach of trust. (e) In a 
case where the trustee did not seek to make anything himself, but 
was honourably unfortunate in having yielded to the importunity 
of one of the cestuis que trustent, it was held that, although the 
trustee was bound to replace the specific stock, the cestuis que 
trustent should not have the option of taking the proceeds with 
interest. (/) 

In the case of the insolvency of a trustee, the cestui que trust 
has the option of proving for the proceeds of the sale with 
interest, or for the cost of the specific stock at the time of of trustee^ 
the insolvency with the interim dividends, (gf) 

Where the instrument of trust directs the trustees to raise 
money by the sale or mortgage of the trust-property, they Duties of 
may act without the leave of the Court. (A) But if a suit trustees 
respecting the trust has been instituted, the trustees cannot *•"■ sale or 
deal with the property without the leave of the Court, for by '""''tgage. 
the suit the execution of the trust is in the hands of the Court, (i) 
" Private contracts, therefore, after the institution of a suit, can 
only be entered into by trustees subject to the approbation of the 



(a) Phillipson v. Gatty, 7 Hare, 516 ; Pocock v. Beddington, 5 Ves., 794 ; 

Norris v. Wright, 14 Beav., 304. Piety v. Stace, 4 Ves., 620 ; Jones v. 

(6) Davenport v. Stafford, 14 Beav;, Foxall, 15 Beav., 392. 

335. (e) Lander v. Weston, 3 Drew., 394 ; 

(c) Bostock V. Blalceney, 2 Bro. C. C, Re Massingberd, 63 L. T. N. S., 296 

663 ; Ex parte Shakeshaft, 3 Bro. C. C, (C. A.). 

191 ; Raphael V. Boehm, n Ves., 108 ; (f) O'Brien v. O'Brien, 1 Moll., 

Harrison t. Harrison, 2 Atk., 121 ; 533. 

Bate V. Scales, 12 Ves., 402 ; Phillipson (g) Exparte Shakeshaft, 3 Bro. C. C, 

V. Gatty, 7 Hare, 516 ; Norris v. Wright, 197. 

14 Beav., 305 ; Rowland v. Witherden, (h) Earl of Bath v. Earl of Bradford, 

3 Mac. & G., 568 ; Wiglesworth v. Wigles- 2 Ves., 590. 

worth, 16 Beav., 269; Tirupatiroyudu (i) Walker y. Smallwood, Aiah.,W16; 

V. Lakshminarasimha, 38 Mad., 71. Drayson v. Pocock, 4 Sim., 283 ; Berry 

{d) Crackeltv. Bethune, 1 Jac. & W., v. Gibbons, L. R., 8 Ch. Ap., 747 ; Re 

587; Moseley v. Ward, 11 Ves., 581 ; Hoban (1896), 1 I. R., 401. 



172 TRUSTEE FOR SALE OR MORTGAGE. [LeC. VI. 

Court, and a condition is commonly annexed that the contract 
shall be null and void, unless the sanction of the Court be obtained 
within a limited period. Cases have occurred where, from acci- 
dental circumstances, the sanction has not been obtained within 
the time, and then by the death of the purchaser the contract has 
dropped to the ground, and the representatives of the purchaser 
have not felt themselves justified in renewing it. The better mode 
would be, to give liberty to the purchaser at any time after the 
expiration of a limited period, but before any confirmation by the 
Court, to determine the contract."(a) 

A trustee for sale is bound to sell the trust-property to the best 
Trustee advantage, and to use aU reasonable diligence to obtain a 

bound to proper price. (6) If he is negligent in conducting the sale, 

sell to best as by not advertising(c), or makes a misstatement as to the 
a vantage. condition of the property, whereby the price is reduced((i), 
he will be personally liable for any loss occasioned. All the trustees 
are equally liable, and cannot escape responsibility, on the ground 
that the conduct of the sale was delegated to one of their number, (e) 
If, however, a trustee enters into a contract for the sale of trust- 
property, he is not bound to break off the contract in order to sell 
to another . person who makes a higher offer(/) ; and when there 
are two ofEers, and it is not quite clear which is the most advan- 
tageous, the trustee will not be liable for refusing to accept the 
offer preferred by the cestui que trust. (g) 

The trustees must pay equal and fair attention to the interests 
of all persons concerned. If they, or those who act by their 
to interes" authority, fail in reasonable diligence, — ^if they contract 
of all parties, under circumstances of haste and improvidence, — ^if they 
make the sale with a view to advance the particular 
purposes of one party interested in the execution of the trust at the 
expense of another party — a Court of Equity will not enforce the 
specific performance of the contract, however fair and justifiable 
the conduct of the purchaser may have been. (A) So, specific perform- 
ance will not be enforced against trustees, if they have entered into 
an agreement by mistake to sell at an inadequate consideration (i) ; 
nor, where there has been a substantial misdescription on their 
part, will specific performance with compensation be enforced 



(a) Lewin, 12th Edn., 499. ( / ) Goodwin v. Fielding, 4 D. M. G., 

(6) Downes v. Grazebrook, 3 Mer., 90 ; Harper v. Hayes, 2 DeG. F. & J., 

208 ; Mathie v. Edwards, 2 Coll., 480 ; .542. 

Ori V. Noel, 5 Madd., 438. (jr) Selby v. Bowie, 4 Giff., 300. 

(c) Ord V. Noel, 5 Madd., 438 ; Pechel (h) Ord v. Noel, 5 Madd., 440 ; Anon., 

V. Fowler, Anst., 549. 6 Madd., 11 ; Turner v. Harvey, Jae., 

{d) Tomlin v. Luce, 41 Ch. D., 573 ; 178 ; Mortlock v. Buller, 10 Ves., 292 ; 

43 Ch. D. (C. A.), 191. Hill v. Buckley, 17 Ves., 394. 

(e) In re Chertsey Market, 6 Price, (i) Bridger v. Rice, 1 Jac. & 

285 ; Oliver v. Court, 8 Price. 166. W. 74. 



Lee. VI.] VALUATION. 173 

against thein(a) ; and in no case will specific performance be granted 
if there has been a breach of trust.(6) The sale of property at a 
grossly inadequate value is a breach of trust which affects the title 
in the hands of a purchaser, (c) 

" The usual course," said Lord Eomilly(a(), " is, for cestuis 
que trustent, who are the persons most interested in the matter, 
and who have the strongest motive for obtaining the highest possible 
price, to enter into a conditional contract of sale, and then to 
obtain the assent of the trustee, who, when he has satisfied himself 
that the sum proposed to be given for it is the value of the property, 
ought to sanction a sale which is beneficial for the persons for 
whom he is trustee." This of course is only when the cestuis que 
trustent are persons competent to contract. 

The trustee before sanctioning a sale should have a „ , .. 
valuation of the property made by some qualified person, (e) 

An absolute trust for sale, from which it appears that it was 
the intention of the author of the trust that the property Absolute 
should be converted, will not authorize the trustees in trust for 
mortgaging. (/) But where the trustees are authorized to sale will not 
sell in order to raise money for a particular purpose, as for mortgage, 
instance, to pay debts, and it does not appear that it was 
the intention of the author of the trust that the property should be 
converted(5), or when the trust for sale is coupled with a discretion 
for postponement and in the needs of management in the meantime 
a power to mortgage can be implied(ii), the trustees may raise the 
necessary money by means of a mortgage. " Generally speaking," 
said Lord St. Leonards(i), " a power of sale, out-and-out, for a 
purpose or with an object beyond the raising of a particular charge, 
does not authorize a mortgage ; but where it is for raising a parti- 
cular charge, and the estate itself is settled or devised subject to 



(a) White v. Guddon, 8 C. & F., (c) Stevens v. Austen, 7 Jur., N. S. 

766. 873. 

(6) Wood V. Richardson, i Beav., (d) Palairet v. Carew, 32 Beav., 568. 



176 ; Fuller v. Knight, 6 Beav., 205 
Thompson v. Blackstone, ib., 470 
Sneesby v. Thorne, 7 D. M. G., 399 
Oceanic Steain Navigation Company v. 
Sutherberry, 16 Ch. D. (C. A.), 236 
Dunn V. Flood, 25 Ch. D., 629 ; 28 Ch 
D. (C. A. ), 586 (this was a case of depre 



(e) Oliver v. Court, 8 Price, 165 ; 
Campbell v. Walker, 5 Ves., 630. 

(/) Haldenby v. Spofforth, 1 Beav., 
390 ; Stroughill v. Anstey, 1 D. M. G., 
635 ; Page v. Cooper, 16 Beav., 396 ; 
Devaynes v. Robinson, 24 Beav., 86 ; 
Walker v. Southall, 56 L. T. N. S., 882. 



ciatory condition) ; Bellringer v. Blag- (g) Ball v. Harris, 4 M. & Cr., 264 ; 

rave,'\ DeG. & S., 63; Mortlock v. Re Jones; Button v. Brookfield, 59 

Buller, 10 Ves., 292 ; Motee Dos v. L. J. Ch., 31 : 38 W. R., 90. 

Modhoo Soodan, 1 W. K., 4 ; Narain v. {h) Re Bellinger (1898), 2 Ch., 534. 

Aukhoy, 12 Cal., 152 ; Sarbesh v. See also Re Webb, Leedham v. Pat- 

Khetrapal, 11 C. L. J., 346 ; Bamlal chett, 63 L. T. N. S., 545. 

TJiakursidas V. Lakhmichand Muniram, (i) Stroughill v. Anstey, ID. M, G., 

1 B. H. C. R., Appx., Ixu. 645. 



174 



TRUSTEE TO MAKE GOOD TITLE. 



rLec. VI. 



Trust to 
mortgage 
will not 
authorize 
sale. 



Trust for 
sale sur- 
vives. 



Counsel's 
opinion. 



that charge, there it may be proper, under the circumstances, to 
raise the money by mortgage, and the Court will support it as a 
conditional sale, as something within the power, and as a proper 
mode of raising the money." 

Where a trust for sale does not prima facie imply a power to 
grant a lease, an agreement to lease cannot be enforced, (a) Exe- 
cutors, who are quasi trustees for sale will not in the absence of 
special circumstances, be justified in granting leases and the burden 
is on the lessees to prove that the leases were necessary ia the 
interests of the persons entitled to the property. (6) But neither 
executors nor trustees have the power to provide in the lease for 
an option of purchase by the lessee at a fixed price, (c) Under a 
power of sale or exchange, the trustees can however make a parti- 
tion. (<?) 

Conversely, a trust to raise money by way of mortgage 
will not authorize a sale, and the Court will not, in such a 
case, direct a sale, even though it clearly appears that a 
sale would be more advantageous, (e) 

A trust for sale survives, and it is not necessary, 
where one trustee has died before a contract has been 
entered into, to go to the Court in order to cany the sale 
into effect. (/) 

Trustees are bound, like other persons, to make a good 
title ; they may of course protect themselves by express 
stipulations, (gi) 

" It would be prudent before proceeding to the execution of the 
trust to take the opinion of counsel whether a good title can 
be deduced. Should the contract for sale be unconditional, 
and the title prove bad, the purchaser in a suit for specific 
performance would have his costs against the trustee, though the 
trustee, where his conduct was excusable, might charge them upon 
the trust-estate under the head of expenses."(fe) 



Trustees 
bound to 
make good 
title. 



(a) Evans v. Jackson, 8 Sim., 217. 

(5) Hackett v. M'Namara, LI. & G. 
Rep. t. Plunket, 283 ; Keating v. Keat- 
ing LI. & G. Rep. t. Sugden, 133; 
Oceanic Steam Navigation Com- 
pany V. Sutherberry, 16 Ch. D. (C. A.), 
236. 

(c) Oceanic Steam Navigation Com- 
pany T. Sutherberry, supra ; Clay v. 
Rufford, 5 DeG. & Sim., 768 ; see also 
Belringer v. Blagrave, 1 D. & G. Sim., 
768. 

{d) Re Frith and Osborne, 3 Ch. D., 
618. See also i3oe V. Spejicer, 2 Exoh., 
752; Abel v. Heathcote, 2 Ves., 98 ; but 



for a long time the authority was 
doubted ; see M' Queen v. Farquhar, 11 
Ves., 467 ; Attorney-General v. Hamil- 
ton, 1 Madd., 214 ; Bradshaw v. Fane. 
3 Drew., 534. 

(e) Drake v. Whitnwre, 5 DeG. & 
Sm., 619 ; Re Holloway, 60 L. T. N. S., 
46 ; 37 W. R., 77. See further as to 
powers of sale, Lewin, 12th Edn., 504. 

( / ) Lane v. Debenham, 11 Hare, 188 ; 
Be Bacon (1907), 1 Ch., 475. 

(g) White V. Foljambe, 11 Ves., 343 ; 
iTDonald v. Hanson, 12 Ves., 277. 

(A) Lewin, 12th Edn., 511. 



Lee. VI.] DUTIES OF TRUSTEES FOR PURCHASE. 



175 



After property has been sold under a power of sale, the trustee 
should not let the purchaser into possession until the whole 
amount of the purchase-money has been paid, (a) The Payment of 
purchaser is not bound to pay the money to the trustees money, 
personally ; but payment to an authorised agent of the 
trustees will bind them, and discharge the purchaser. (6) 

It sometimes happens that trustees are directed to lay 
out the trust-funds in the purchase of lands. Such a P"''.^= °^ 
direction is not very common, and I only propose to deal purchase, 
with this branch of the law very shortly. 

The general rule is, that trustees for purchase, like all other 
trustees, are boimd to discharge the duty prescribed; and failing 
to do so are answerable for the consequences, as if a specific fund 
be bequeathed to trustees upon trust to lay out on a purchase, and 
they neglect to call in the fund and lay it out, they are liable to 
compensate the cestui que trust for the consequences, (c) Where 
there is no money in hand, they cannot contract for a purchase, 
to be completed when money shall be available, for by that time 
the property may go down in value, (d) The trustees must take 
care to have the estate valued on their own behalf, and must not 
be content with the valuation of the vendor, (e) They must see 
that a good title is shown, and will be justified in taking legal 
advice.(/) If the trust-estate is in the hands of the Court, the 
trustees can only contract subject to the approval of the Court, 
which win direct an inquiry as to whether the purchase is beneficial, 
and if so, whether a good title can be made.(5') Trustees having a 
trust or power to purchase must exercise a joint discretion as to the 
propriety of the purchase, and therefore, as no man can be a judge 
in his own case, they are precluded from buying from one of them- 
selves. If such a purchase be really desirable, it might be carried 
out by a friendly suit for obtaining the sanction of the Court. (^) 

The trustees, where the money is not under administration 
by the Court, need not disclose the trust to the vendor either in 
the contract or in the conveyance. If they do so, it wiU embarrass 
the vendor by obliging him to see that the purchase-money is 
properly applied in pursuance of the trust, (i) 



(o) Oliver v. Court, 8 Price, 166 ; 
Browdl V. Reed, 1 Hare, 434. As to 
the conveyance and covenants, &c.. 
See Lewin, 12th Edn., 522. 

(6) Hope V. Liddell, 21 Beav., 183 
Robertson v. Armstrong, 28 Beav., 123 
and see In re Fryer, 3 K. & J., 317 
Viney v. Chaplin, 2 DeG. & J., 468 
West Y. Jones, 1 Sim., N. S., 205. 

(c) Lewih, 12th Edn., 585, citing 
Craven v. Craddock, W. N., 1868, 
p. 229. 



{d) Ecclesiastical Comm. v. Pinney 
(1900), 2 Ch. (C. A.), 736. 

(e) Ingle v. Partridge, 34 Beav., 412. 
See Re Godfrey, 23 Ch. D., 483. 

( / ) Eastern Counties Railway Co. v. 
Hawkes, 5 H. L. Cas., 363. 

{g) Bethell v. Abraham, L. R., 17 
Eq., 27 ; Ex parte The Governors of 
Christ's Hospital, 2 H. & M., 166. 

(h) Lewin, 12th Edn., 590. 

(i) Ibid., 593. 



LECTURE VII. 

DUTIES AND LIABILITIES OF TRUSTEES. 

Time within which sale of trust-property to be made — ■ Discretion to be exer- 
cised — Indian Trusts Act, s. 22 — ■ Conveyance of trust-property to cestui^ 
que trustent — Distribution of the trust-fund — Derivative title — Payment 
after death of cestui que trust — Appointment of trustee to assist in 
distributing — Presumption of death — Rebuttal of presumption — 
Release — Liability for payment to wrong persons — C!osts — Interest ■ — 
Bond of indemnity — Authority from cestui que trust to receive the 
money — Payment on written authority — Payment to persons under dis- 
ability — Partners — Payment to single trustee — Overpayment : Indian 
Trusts Act, s. 32 — Refund to executor — Payment when debt from 
testator subsisting — Liability of trustee for breach of trust — Trustee 
liable though he has not benefited — Extent of liability — Trustee about 
to abscond — Criminal breach of trust — Liability of professional adviser — 
Partner — Loss by accident — Neglect to obey directions in instrument 
of trust — To pay premiums — Sale to purchaser for valuable consideration 
without notice — Agent — Barnes v. Addy — • Limitation — Wilful default — 
Concurrence — Fraud by trustees — By cestui que trust — Acquiescence — 
Delay — Release and confirmation — No set-off in respect of breach of 
trust — Liability for breach of trust by predecessor or co-trustees — 
Trustee joining in receipt for conformity — Indian Trusts Act, s. 26 — • 
Trustees giving receipt bound to see to investment — Walker v. Symonds — 
Trustee joining in act for convenience — Executor joining in receipt for 
conformity — Executor must ascertain that money required — Executor not 
liable as such for act of co-executor — Styles v. Guy — Liability under decree 
for common account — Unnecessarily handing over assets — Restraining 
intended breach of trust — Several liability of co -trustees — Limitation of 
liability — Contribution — Impounding fund in 'Court — Costs — Trustee 
paying imder power-of-attomey — Payment withoiit notice of transfer — 
Indemnity -clause. 

Where the instrument creating the trust contains a direction 

Time within ^ ^^^ trustees to sell and convert the trust-property, the 

which sale trustees will be allowed a reasonable time within which 

of trust- to effect the sale, even though the direction is to convert 

hl°mlZ *° " "^*^ ^^^ convenient speed." " A direction to convert with 

all convenient speed," said Sir C. C. Pepys, M. R.(a), " is no 

more than the ordinary duty implied in the office of an executor, 

and there must necessarily be some discretion. If a reasonable 

discretion were to be denied to an executor, if it were to be laid 

down as in inflexible rule that he ought to convert the assets without 

waiting or considering how far it was for the interest of those who 

are beneficially entitled, there would of necessity be always an 

immediate sale ; the executor would be bound to sell at whatever 

loss. Such a rule would be in its operation most injurious, and it 

has never been acted upon by the Court, which, in cases of this 

(a) Buxton v. Buxton, 1 M. & Cr.j 93. 



Lee. VII.] EXERCISE OF DISCRETION. 177 

kind, has always considered what is for the interest of the parties 
concerned. "(a) I ^ .] _ 

It is impossible to fix a particular period within which an 
executor should convert his testator's property, but a 
reasonable discretion must be allowed to the trustees, and P'^cretion 

lO DC CXCf"' 

whether they have exercised such a discretion must depend cised. 
on the facts. (6) " You cannot," said Sir J. Romilly, 
M. R.{c), " fix one period for selling every species of property. 
Thus, suppose the testator possessed a large quantity of horses, 
it would be culpable to keep them at a great expense, incurring 
necessarily a great outlay for their maintenance, instead of selling 
them at once. But with respect to other property, there must 
be a reasonable time allowed for selling it." The usual time is 
twelve months. ((?) In one case two months were held to be a 
reasonable time within which to break up a testator's estab- 
lishment, (e) And where executors sold the stock-in-trade and 
good-will of a business three weeks after their testator's death, 
though against the wish of the cestui que trust, and though 
there was evidence that a better price might have been obtained, 
they were held not responsible, as they had acted honestly. (/) 
There is no fixed rule that conversion must take place by the 
end of the year, but that is the prima facie rule, and executors 
who do not convert by that time, must show some reason why they 
did not do so.(5r) 

But if the trustees have acted honafde, and according to the 
best of their judgment, and it appears that a sale within twelve 
months must have resulted in a loss, they will not be liable, (fe) 
Trustees will, however, be Uable for loss caused by any improper 
delay, (i) Where trustees delayed selling for twenty-five years, 
they were held to be liable. (_7) Persons who deal with trustees 
selling at a considerable distance of time, are under an obligation 
to enquire and see that no breach of trust is being committed. (A;) 
And as a reasonable rule, the Court of Appeal recently laid down a 
period of twenty years from the testator's death. (Z) The rule does 

(a) Parry v. Warrington, 6 Maad., 9 Jur., N. S., 425. 
155. (?) Oraybum v. Clarkson, L. R., 3 

(6) Buxton V. Buxton, 1 My. & O., Cli., 606 ; Dunning v. JSarl of Gains- 

93. borough, 54 L. J. N., S. Ch., 991. 

(c) Hughes v. Empson, 22 Beav., (h) Garrett v. Noble, 6 Sim., 504; 
183; Hiddingh v. Denyssem, 12 Ap. Buxton v. Buxton, 1 M. & Cr., 80. 
Gas., 624 ; Re Chapman (1896), 2 Ch. ( i) PaUenden v. Hobson, 22 L. J., 
(0. A.), 763. Ch., 697 ; Cuff v. HaU, 1 Jur., N. S., 

(d) See DeSouza t. DeSouza, 12 H. 972 ; Devaynes v. Robinson, 24 Beav., 
C. E.., 184; Parry v. Warrington, 6 86. 

Madd., 155; Vickersv. Scott,SM. & K., {}) Fry v. Fry, 27 Beav., 144. 

500; Fitzgerald v. Jenmse, 5Madd., 25. (k) StroughiU v. Anstey, 1 D. M. G., 

See Act V of 1881, e. 117. 635. 

(e) Field v. Peckett, 29 Beav., 576. (/) Re Tanqueray and Landau, £0 
(/) Selby V. Bowie, 4 Giff., 300 ; affd , Ch. D. (C. A.), 465. 

A, IT 12 



178 EXERCISE OF DISCRETION. [LCC. VII. 

not, however, apply to the sale of leaseholds by executors, (a) A 
trust to sell " at such time and in such manner " as the trustees think 
fit, will not justify the trustees in arbitrarily postponing the sale to 
an indefinite period, so as to place the tenant-for-life and those in 
remainder in a totally different relative situation from that in which 
they would have been, had the sale been made with reasonable 
diligence. (6) Where property was devised to trustees upon trust 
with all convenient expedition, and within five years after the 
testator's death absolutely to sell and convey the premises, it was 
held, that the trustees could make a good title upon a sale after the 
expiration of that period. " There is nothing," said Turner, V. C, 
" in the will importing a negative on a sale being effected by the 
trustees after the expiration of five years. If there had been a 
provision negativing any- sale by the trustees after that period, 
there might have been a sufiicient ground for this Court refusing 
to interpose to enforce specific performance of the agreement. 
The question is, whether it is to be collected from the will that the 
sale, which must at any rate be effected notwithstanding the lapse 
of the five years, may not after that time be made by the trustees, 
or whether it must then be made under the direction of the Court 
of Chancery by the Act of the Court. I cannot impute the latter 
intention to the testator. ... I think the expression of the 
will as to the five years is only directory to the trustees, that they 
might make the payments out of the trust-funds within that time, 
if possible, "(c) 

" Where a trustee directed to sell within a specified time 

extends such time, the burden of proving, as between 

ArtTlr^*^ himself and the beneficiary, that the latter is not 

' ' ' prejudiced by the extension lies ijpon the trustee{d), 

unless the extension has been authorized by a principal Civil Court 

of original jurisdiction." 

Where a testator left money invested in speculative securities, 
and the executors waited for twelve months, by which time the 
market had fallen, and they, hoping the market would rise, delayed 
the sale, and a loss ensued, — it was held, that they ought not to be 
made liable. " The executors," said James, L. J., " acted with 
no view of obtaining any benefit to themselves ; they appear to 
have acted honestly with a view to what they thought beneficial 
to everybody interested. In the honest exercise of their discretion 



(a) Be Whistler, 35 Ch. D., .561 ; (c) Pearce v. Gardner, 10 Hare, 287, 

Re Vennand Furze (1894), 2 Ch., 101. 291 : and see Cuff v. HaU, ] Jur., N. S., 

(6) Walker v. Shore, 19 Ves., 391 ; 972; De La Salle v. Mooral, L. R., 11 

see Wilkinson v. Duncan, 23 Beav., Eq., 8 ; Edwards v. Edmunds, 34 L. T. 

469 ; Hawkins v. Chappd, 1 Atk., 023 ; N. S., 522. 

Re Smith (1896), \ Ch., ni ; Re Hamil- (d) Guff v. Hnll, 1 Jur., N. S., 

ton (1896), 2 Ch. (C. A.), 617. 972. 



Lee. VII.] CONVEYANCE TO CESTUI QUE TRUST. 



179 



they thought it more prudent to wait for a rise, and we think they 
ought not to suffer because it turns out that they committed an 
•error of judgment. It would be very hard upon executors, who 
have been saddled with property of this speculative kind and have 
■endeavoured to do their duty honestly, if they were to be fixed with 
a, loss arising from their not having taken what, as it proved by the 
result, would have been the best course."(a) 

If a testator gives an absolute discretion to his executors to 
postpone the sale and conversion of his estate, they are not bound 
by the ordinary rule to convert the property within a year, even 
though some of it consists of shares in an unlimited company. 
And they will not, in the absence of maid fides, be liable for loss 
arising to the estate from non-conversion. (6) 

If the instrument creating the trust does not contain any 
special direction as to sale, it is not usual for the trustees to sell 
except upon the request of some one or more of their cestuis que 
trustent, or under circumstances which render a sale necessary or 
expedient, or unless the property is not of a permanent character, (c) 
A trust for sale of real estate cannot come to an end, unless all the 
cestuis que trustent agree to take the property as realty, (d) 

Where property is settled on trust for sale and when the 
trustees in their absolute discretion think fit and there is great 
difficulty in realisation, the court has jurisdiction to sanction an 
appropriation of the original investments to the shares of the 
various beneficiaries, including a settled share, although some of 
the investments appropriated to the settled share are not authorised 
by the investment clause, (e) 

When the duties of trustee are at an end, they must convey 
the trust-property to their cestuis que trustent upon its being 
clearly and satisfactorily proved to them that their duties 
are at an end, unless they have notice of any disposition or 
incumbrance made by the cestuis que trustent or any of 
them.(/) If the cestui que trust is sui juris and absolutely 
•entitled to the trust-fund the trustees cannot withhold it on the 
apprehension that he might squander away the fund or otherwise 
deal improvidently with it.(g) 



Conveyance 
of trust- 
property to 
cestuis que 
trustent. 



(a) Marsden v. Kent, L. R., 5 Ch. 
Div, 600; Re Chapman (1896), 2 Ch. 
^C. A.), 763 ; and see Sculthorpe v. 
Tipper, L. R., 13 Eq , 232 ; Turner v. 
Muck, L. R., 18 Eq., 301. 

(6) In re Norrington Brindley v. 
Partridge, L. R., 13 Ch. Div , 654 ; Re 
Blake, 29 Ch. D. (C. A.), 913. 

(c) See Dart V. & P., 5th Edn , 
59 

(d) Biggs v. Peocoek, 22 Ch. D. 



(C. A ), 284 ; Re Tweedie and Miles, 27 
Ch. D., 315 ; Re Douglas and Powells' 
Contract (1902), 2 Ch , 296 

(e) In re Cookes settlement. Tarry v. 
Cooke (1913), 2 Ch. 661 ; In re Brooks, 
76 L T, 771. 

(/) Frederick v. Hartwell, 1 Cox, 
193 ; Holford v Phipps, 3 Beav., 440. 

(g) Re Selots' Trusts (1902), 1 Ch., 
448; De Burgh v. M'OUntock, 11 I.R., 
220. 



180 PEESUMPTION OF DEATH. [LCC. VII. 

When a trustee is called upon to distribute the trust-fund, he 

has a right to know the title of those who claim to be cestuis 

Distribution g,ye trustent.{a) And the necessity of seeing that the trust- 

of the trust- xnoney reaches the proper hand is obligatory, not only on 

trustees regularly invested with the character, but on all 

persons having notice of the equities, as if A lends a sum to B, and 

B afterwards discovers that it is trust-money, he cannot pay it back 

to A, unless A, as trustee, has a power of signing a receipt for it.{b} 

It occasionally happens that other persons than the original 

cestuis que trustent may come to have an interest in the 

Derivative trust-property, and questions arise as to how far the 

' ^' trustees are liable if they part with the trust-fund without 

noticing the persons who have subsequently acquired an interest 

in it. For instance, the instrument creating the trust may give A 

a life-interest, with a power of appointment among his children. 

Here the trustees must be careful to ascertain whether any 

appointment has been made, and who are the persons entitled 

under it. So if they have notice of an incumbrance having been 

created by a cestui que trust, they must ascertain whether it is. 

still subsisting, otherwise they will be liable if they pay to the 

original cestui que trust. (c) New trustees are not bound to make 

any enquiries of the old trustee as to incumbrances, (c?) 

Upon the death of a cestui que trust, the trustee must only pay 
_ . to the person duly authorized by law to give receipts for 

after death property belonging to the cestui que trust. He has nothing 
o{ cestui to do with any disputes as to the persons tdtimately 

qrte trust. entitled, and if he mixes himself up with such disputes 

and refuses to pay over the trust-fund to the person entitled to 
demand it, he will be liable for the costs of a suit to recover it.(e) 

. If a surviving trustee be placed in an embarrassing 

ment'of' situation as regards the distribution or management of 

trustee to the fund, it is said that he has a right to ask for the 

assist in appointment of a new trustee to assist him by his 

distributing. ^^^j,sei_(y<) 

According to English law, if a person has not been heard of 

for seven years, there is a presumption of law that he is 

Presump- AeaA ; but at what time within that .period he died or 

death whether the death was without issue, is not a matter of 

presumption but of evidence, and the onus of proving^ 

(o) Hurst V. Hurst, L. R., 9 Ch., 762 ; 91 ; CressweU v. Dewell, 4 Giff., 460 ; 

see Davis v. Hittchings (1907), 1 Ch., Mack v. Postle (1894), 2 Ch., 449. 

356. {d) Phipps V. Lovegrove, L. E., 16 

(6) Sheridan v. Joyce, 7 Ir. Eq. Rep., Eq., 80. 

115. (e) Smith v. Bclden, 33 Beav., 262. 

{c) Cothay V. Sydenham, 2 'Bio. C. C, (/) Lewin, 12th Edn., 406, citing: 

391 ; Leslie v. Baillie, 2 Y. & C. C. C, Livesay v. O'Hara, 14 b. Ch. Rep.. 12. 



Lee. VII.] REBUTTAL OF PRESUMPTION. 181 

that the death took place at any particular time within the seven 
years, lies upon the person who claims a right, to the establishment 
■of which that fact is essential, (a) According to Hindu law, there 
must be a lapse of twelve years before death will be presumed. (6) 
And under the Mahomedan law, a missing person is regarded as 
alive, till the lapse of ninety years from the date of his birth, (c) 
But these rules of Hindu and Mahomedan laws have been 
superseded by the Indian Evidence Act(d), which in substance 
re-enacts the principles of English law. 

The presumption does not arise when the probability of 
intelligence is rebutted by circumstances, (e) Should the p t, tt l f 
person afterwards re-appear in fact, he may assert his presumption, 
right. (/) And therefore, if the trust-fund is in Court and 
it is paid out to a claimant, he must give security to refund in such 
a case. (5) A trustee should, therefore, either accumulate the fund 
until death is proved, or else require an indemnity from the 
person to whom he pays. 

When a trustee or executor hands over the trust-funds to a 
cestui que trust, it is usual to obtain a receipt or acknowledg- 
ment in full discharge of all claims. But such a receipt only 
discharges in respect of those claims which were actually known, 
and if given in ignorance of the real facts, will not afiect the right 
of the cestui que trust.Qi) 

If a trustee, executor, or administrator pays over the trust- 
fund to persons who are not properly entitled to it, he will. Liability 
as a general rule, be liable to those persons who can prove for payment 
their title to it, even though he has acted honestly and to wrong 
circumspectly, and has been misled by his legal advisers. Persons. 
" I have no doubt," said Lord Eedesdale(i), " that the trustees 



(a) In re. Phene's Trusts, L. R., 5 Ch., Sundari DM v. Gobind Mani, ib, 

139 : and see Nepean v. Doe, 2 M. & n. 137 

W., 894 ; Dunn v. Snowden, 2 Dr. & (c) Mahzar Alt v. Budh Singh, 7. 

•Sm., 201 ; Lamb v. Orton, 6 Jur.,N. S., All., 297. 

61 ; SilUck V. Booth, 1 Y. & C. C. C, (d) Act I of 1872, ss. 107—108 ; 

117 ; Hickman v. UpsaU, L. R., 20 Eq., Yusuf Ali v. Ayub, 11 A. L. J., 355 ; 

136 ; iJe iJAo(ies, 36 Ch. D., 586 ; jBcgr. V. Dhondo v. Ganesh, 11 Bom., 433; 

To&ow, 23 Q. B.D., 168; JRe Gurbishly's Balayya v. Krishnappa, 11 Mad., 448. 

Trusts, 14 C. D., 846 ; Re Benjamin (e) Bowden v. Henderson, 2 Sm. & 

<1902), 1 Ch., 723; Re Aldersley (1905), G., 360; Prudential Assurance Co. v. 

2 Ch., 181. For death without issue, Edmunds, 2 Ap. Cas., 487. 

see Re Jackson (1907), 2 Ch., 354; (/) Lewin, 12th Edn., 408, citiug 

MuUa Kasim v. MvMa Abdul Rahim, Woodhou-selee v. Dalrymple, 9 W. R. 

■33Cal, 175 P. C. ; Fani v. Surjya, 35 (Eng.), 475: Monckton v. Braddell, L. 

Cal., 25 ; Narki v. Lai Sahu, 37 Cal., R., 7 Eq., 30. 

103 ; Rango Balaji v. Mudiyeppa, 23 (g) Dowky v. Winfield, 14 Sim., 277 ; 

Bom., 296 ; Muhammad v. Bande Ali, CuMert v. Furrier, 2 Phillips, 199. 

^4 AH., 36. {h) Eaves v. Hickson, 30 Beav., 143 : 

(6) Janmajay Mazumdar v. KesJiab see further Lewin, 12th Edn., 417. 

Lai, 2 B. L. R., A. C, 134 ; Sarada (i) Doyle v. Blake, 2 Soh. & Lef., 243. 



182 INTEREST. [Lec. VII. 

meant to act fairly and honestly ; but they were misadvised ; and 
the Court must proceed, not upon the improper advice under 
which an executor may have acted, but upon the acts which he 
has done. If under the best advice he could procure he acts 
wrong, it is his misfortune ; but public policy requires that he 
should be the person to suffer. "(«) But ignorance of facts may, 
under certain circumstances, excuse the trustees.(&) 

Where the trustees have acted bondfde and under legal advice. 
Costs ^^^y ^^^ ^^^ ^® made to pay costs, (c) As a rule, costs 

follow the event, and if a plaintiff fails, he has to pay the 
costs 'of the suit. But the Court has jurisdiction to allow an un- 
successful plaintiff his costs. And if it appears upon the construc- 
tion of the instrument of trust that the rights of parties were so 
exceedingly doubtful that the fund could not safely be distributed 
without the opinion of the Court, an unsuccessful claimant may 
be allowed his costs out of the fund.((i) Where, however, a suit 
was instituted for the administration of an estate by a person 
entitled to a contingent reversionary interest, and a decree for an 
account was obtained, but before the accounts could be taken his 
interest wholly failed, he was held not to be entitled to his costs 
either as against the defendants or out of the fund.(e) 

But trustees are not justified by remaining passive, in pre- 
venting the rightful owners from obtaining possession of their 
property, and if called upon to do an act involving no risk or 
responsibility, which is necessary to enable the true owner to obtain 
his property, they are bound to do it ; and if their refusal renders- 
an application to the Court necessary, they will be made to pay 
the costs. (/) 

An executor or trustee who in good faith pays over trust- 
Interest money to persons who are not entitled to it, may be ordered 
to refund, but he will not have to pay interest, (gr) So it 
was held by Sir J. Romilly, M. R., but this decision is not 
reconcilable with principle or the current of authority. (A) If 
interest has been paid by mistake, it cannot be recovered 



(a) And see Urch v. Walker, 3 M. & {d) Lynn v. Beaver, T. & R., 63 r 

C, 705 ; Turner v. Mauje, 3 DeG. & Wescott v. CulUford, 3 Hare. 274 ^ 

Sm., 497 : Jn re Knight's Trusts, 27 Turner v. Framptcm, 2 Coll., 3''S ;. 

Beav., 49. Wedgwood v. Adams, 8 Beav., 103 ;. 

(6) Bx parte Norris, L. R., 4 Ch., Boreham v. Bignatt,S Hare, 13i; Merlin 

287; Re Jackson, 44 L. T. N. S., v. Blagrave, 25 Bea.v., }3i. 

467. (e) Hay v. Bowen, 5 Beav., 610. 

(c) Angier v. Stannard, 3 M. & K., ( / ) In re Primrose, 23 Beav., 590. 

566; Devey v. Thornton, 9 Hare, 232; Ig) Saltmarsh v. Barrett, 31 Bear., 

Field V. Donmighmore, 1 Dr. & War., 349. 

234. See Stott v. Milne, 25 Ch. T>. (A) Be Hulkes ,33 Ch. D., 652 ; 

(C. A.), 710; Re Beddoe (1893), 1 Ch., Attorney-General v. Kohler, 9 H. L C, 

547. 654 



Lee. VII.] BOND OF INDEMNITY. 183 

back, but such wrongful payment cannot affect the title to the 
capital, (a) 

Likewise the executor or trustee, paying off the trust-fund to 
the beneficiary, without deducting the income-tax, cannot deduct 
such payments from future accretions of income(6) , and if 
annuities are paid away without deducting income-tax, the 
trustees are liable to make good the outpayment to the trust- 
estate, (c) 

" In cases where there exists a mere shadow of doubt as to 
the rights of parties interested, and it is highly improbable 
that any adverse claim will, in fact, be ever advanced, ^^^ ° ;j 
the protection of the trustee may be provided for by a 
substantial bond of indemnity. In general, however, a bond of 
indemnity is a very unsatisfactory safeguard, for when the danger 
arises, the obligors are often found insolvent, or their assets have 
been distributed. And if the bond be to indemnify against a 
breach of trust, the Court is not disposed to show mercy towards 
a trustee who admits himself to have wilfully erred by having 
endeavoured to arm himself against the consequences, "((f) 

" Where the trustee is satisfied as to the parties rightfully 
entitled, he may pay the money either to the parties them- . . 
selves, or to an agent empowered by them to receive it ; and froin°cesLi 
the authority need not be by power-of-attorney, or by deed, que trust to 
or even in writing. The trustee is safe if he can prove receive the 
the authority, however communicated. But a trustee "^°"^y- 
would not be acting prudently if he parted with the fund to an 
agent without some document producible at any moment by which 
he could establish the fact of the agency, "(e) 

If trustees pay on a written authority, they must be careful 
to see that it is genuine ; for if it turns out to be forged, 
they will be liable for the loss. " Trustees," said Lord ^n^^^u 
Northington(/) , " whether private persons or a body authodly? 
corporate, must see to the reality of the authority 
empowering them to dispose of the trust-money, for if the transfer 
is made without the authority of the owner, the act is a nullity, 
and in consideration of law and equity the rights remain as 
before." In that case a bank had permitted a transfer of stock 
under a forged power-of-attorney. " The question is," said Lord 
Romilly(5r), " where forgery is committed, and a person wrongfully 

(o) Bemrmnt v. Hood, 2 DeG. F. & J., ( /) Ashby v. BlachveU, 2 Eden., 302 : 

404: see Ex parte Ogle, L. R., 8 Ch., and see iStomam v. The Bank of England, 

7U. 14 Sim., 475; Barton v. North Stafford- 

(6) Currie y. Ooold, 2 Madd., 163. shire Railway Company, 38 Ch. D. 

(c) Re Sharp (1906), 1 Ch., 79.S. (C. A.), 458. 

(d) Lewin, 12th Edn., 409. (ff) Eaves v. Hickson, 30 Beav., 

(e) Ibid., 410. 141. 



Partners. 

" r 



184 EEKONEOUS OVER-PAYMENT. [LCC. VII. 

gets trust-money which cannot be recovered from him, on whom 
is the loss to fall ? I am of opinion that it falls on the person 
who paid the money. Here the loss falls on the trustees, and the 
persons to whom the fund really belongs are not to bfr deprived 
of it. The trustee is bound to pay the trust-fund to the right 
persons." In this case the trustees had paid over the trust-fund 
to wrong parties upon a forged authority, and they were held to 
be liable ; but the persons who had wrongfully received the money 
were ordered to repay the amount they had respectively received 
in order to relieve the trustees, (a) 

Payment on If trustees are induced by fraud to pay to an infant^ 

unde "^ they will not be liable to pay over again to him when he 

disability. comes of age. (6) 

In the case of the death of a partner, a debt owing to the firm 
may safely be paid to the surviving partners, who are 
competent to give receipts in respect of joint debts. (c) 

The Court will not, in the exercise of its discretion, except 

under special circumstances (c?), pay out money to a 

Payment single trustee who has survived his co-trustees(e), and 

trustee.^ " ^ trustee out of Court would do well to throw all the 

protection he can about a trust-fund ; but it must not be 

inferred that he would not be safe in paying to a single surviving 

trustee, for payment to a surviving trustee for sale, is of constant 

occurrence."(/ ) 

" Where a trustee has by mistake made an over-payment to the 
Erroneous beneficiary, he may reimburse the trust-property out of 

overpayment, the beneficiary's interest. If such interest fail, the trustee 
Indian Trusts is entitled to recover from the beneficiary personally the 
Ac , s. 32. amount of such over-payment." The Court will compel a 
restitution and repayment, and will give the trustees a lien on other 
interests of such cestuis que trustent, even as against an assignee 
for valuable consideration, (gi) Trustees cannot claim an adjust- 
ment ex post facto, if the responsibility for the mistake lies on them 
above. (A) One cestui que trust may sue the cestui que trust who 
has been overpaid, to recover the amoiint notwithstanding the 

(a) See also Bostoch v. Fhyer, L. E., lunatics, see Lewin, 12th Edn , 412, 

I Oh., 26; Re Sperght, 22 Ch. D. 413. 

(C. A.), 727 ; Hopgood v. Parkin, L. R., (c) Philips v. Philips, 3 Hare, 289, 

II Eq., 76; Sutton v. Wilders, L. K., {d) Re Courts of Justice Concentra- 
12 Eq., 373; Natianal Trustees Com- lion (Site) Act, 1865, W. N. (1867), 148. 
pany 0/ Australasia v. General Finance (e) Re Dickinsons' Trust, 1 Jur. 
Cc/mpany of Australasia (1905), A. 0. N. S., 724 ; Re Roberts, 9 W. R., 768 ; 
(P. C), 373. Baillie v. M'Kevmn, 35 Beav., 188. 

(6) Overicm v. Banister, 3 Hare, 503; (/) Lewin, 12th Edn., 413. 

Wright v. Snmv», 3 DeG. & Sm., 321; (gr) Dibbs v. Gmen, 11 Beav., 483; 

Nelson v. Stacker, 4 DeG. & J., 458. Liveaey v. Livesey, 3 Ruas., 287. 

As to payments to married women and (h) Re Home (1905), 1 Ch, 76. 



Lee. VII.] ERRONEOUS OVER-PAYMENT. 185 

Limitation Act, if there have been no improper laches on 
his part, (a) 

Where in a suit against a trustee for relief in respect of a 
breach of trust it appears that over-payments have been made, 
they may be recovered in the suit without instituting fresh pro- 
ceedings. (6) 

Legatees will not, generally, be made to refund, at the suit 
of other legatees, payments voluntarily made to them by j, f ^^j ^ 
the executors under a mistake, but the repayment will be executor, 
ordered to be made out of any undistributed funds in 
which they may be interested(c), especially they will not be made 
to refund when they were not willing parties to the payment, and a 
long period has since elapsed. (cZ) And it appears that a purchaser 
of a legacy cannot be called upon to refund or pay any portion of a 
4ebt subsequently established against the testator's estate. (e) 

Where an executor administered an estate and paid over the 
residue, and ten years after a creditor of the testator brought an 
action of covenant against the executor, who instituted proceed- 
ings to administer the estate, and to make legacies standing in the 
joint names of the executor and legatees applicable to the payment 
of the debt, — ^the Court ordered the debt to be paid out of the 
legacies, but refused to allow the executor his costs.(/) 

Notice of a remote contingent liability on the part of a testator 
is not sufficient to prevent his executor from distributing his resi- 
duary estate ; and if the executor distributes with such notice, and 
the liability afterwards ripens into a debt, he will be entitled to 
•call upon the residuary legatees to refund, (gf) 

It is a general rule that money voluntarily paid under a mistake 
of law cannot be recovered(i^), but if money is so paid to a trustee 
in bankruptcy, or a liquidator or an officer of court, the court will 
order a refund, (i) 

Where one of several residuary legatees or next-of-kin has 
leceived his share of the estate of a testator or intestate, the others 

(o) Harris v. Harris, 29 Beav., 110; {g) Jervi v. Wolferstan, L. E.., 18 

Prowse V. Spurgin, L. R., 5 Eq., 99 ; Eq., 18 ; Whitaker v. Kershaw, 45 Ch. 

Jervis v. Wolferstan, L. R., 18 Eq., 18. D. (C. A.), 320. 

(6) Hood V. Glapham, 19 Beav., 90 ; (h) For the powers of Court to relieve 



V. WooUey, 20 Beav., 583 ; against mistakes of law, see Rogers v. 

Davies v. Hodgson, 26 Beav., 177 ; Ingham, 3 Ch. D. (C. A.), 351 ; Stone 

Griffiths V. Porter, ib., 236. v. Godfrey, 5 D. M. & G., 76 ; Alleard 

(c) Dowries v. Bullock, 25 Beav., v. Walker (1896), 2 Ch., 369. 

.54. («') Ex parte James, 9 L. R. Ch. 

(d) Bate v. Hooper, 5 D. M. G., 345. Ap., 609 ; Ex parte Simmcmds, 16 Q. B. 

(e) NobU V. Brett, 24 Beav.. 499. D. (C. A.), 308 ; Re Brown, 32 Ch. D., 
(/) NobU V. Brett, 24 Beav., 499; 598; Re the Opera Ld. (1891), 2 Ch., 

:26 Beav., 233. 154. 



186 



LIABILITY FOE BEEACH OP TEUST. 



[Lec. VIL 



cannot call upon him to refund if the estate is subsequently wasted ; 
but they can do so if the wasting took place before such share waa 
received. And in the latter case, the burden of proof lies on those 
who call upon the residuary legatee or next-of-kin to refund, t& 
show that the wasting took place before the share was paid 
over, (a) 

It is a breach of trust on the part of executors or trustees ta 
pay residuary legatees while their testator's debts remain 
unpaid, and creditors whose debts are not otatute-barred 
may recover the amount from the legatees(6), even 
without making the executors or trustees parties to the 
action(c), but they cannot recover from a purchaser for 
value. ((?) 

If through the acts, or default of the trustees, the 
trust-property is damaged, the cestuis que trustent are 
entitled to sue the trustees for compensation for the loss 
which has been sustained, and the trustees will be liable 
to make good such loss personally. (e) 

The Indian Trusts Act enacts that " Where the trustee 
commits a breach of trust, he is liable to make good the loss 
which the trust-property or the beneficiary has thereby sustained, 
unless the beneficiary has by fraud induced the trustee to commit 
the breach, or the beneficiary, being competent to contract, has- 
himself, without coercion or undue influence having been brought 
to bear on him, concurred in the breach, or subsequenth' 
acquiesced therein with full knowledge of the facts of the case 
and of his rights as against the trustee." 

A trustee is liable for a breach of trust, even though there 
was no consideration and the trustee himself is the author of the 
trust. (/) And if any person assumes to act as a trustee, and in sO' 
doing injures the trust-fund, he will be responsible, though he was- 
never properly appointed, (gr) 



Payment 
when debt 
from testa- 
tor sub- 
sisting. 



Liability of 
trustee for 
breach of 
trust. 

Indian Trusts 
Act, s. 23. 



(a) Peterson v. Peterson, L. E., 3 
Eq., Ill ; Re Bacon, 42 Oh. D., 559. 
(6) Fordham v. WalUs, 10 Hare, 217. 

(c) Hunter v. Young, i Ex. t>. (C. 
A.), 206 ;■ Ee Fremen, 60 L. T. N. S., 
952. 

(d) Dillces v. Broadmead, 2 D. F. & 
J., 566; Ridgway v. Newstead, 3 D. F. 
& J., 474. 

(6) Syed Khodabunda Khan v. 
M. S. Oomutul Fatima, 13 S. D. A., 
235 ; Moonshee Buzzul Ruhim v. Shum- 
sheroon-nissa Begum, W- R. (F.B.), 60. 
Nilam Tirupatiroyudu v. Vinjamuri 
Lalcshminarasamma, 23 M. L. J., 599. 



(/) Drosier v. Brereton, 15 Beav.,. 
221. 

(g) Rackham v. Siddal, 16 Sim., 297 ; 
1 Mfc. & G., 607 ; Life Association of 
Scotland V. Siddal, 3 DeG. F. & J., 58 ; 
Aveline v. Methuish, 2 DeG. J. & S., 
288 ; Hennessey v. Bray, 33 Beav., 96. 
Ex parte Norris, i Ch. App., 280 ; 
Yardky v. Holland, 20 Eq , 428 ; Lyeit 
V. Kennedy, 14 App- Cas., 437 ; Soar v. 
AshweU(,189S), 2 Q. B. (C. A.), 390. 
(To create such trust, anything showing 
that moneys were received in a fidu- 
ciary character is enough). Jugal 
Kisliore v. Lakslimandas, 23 Bom., fSt 



Lee. VII.] EXTENT of liability. ' 187 

The Court does not inquire whether the trustee has gained 

any particular benefit ; but fastens upon him an obligation Trustee 

to make good the situation of the cestui que trust.(a) " It liable, 

has been the constant habit of Courts of Equity," said though he 

Lord Eedesdale(6), " to charge persons in the character hg^gg"*^ 
of trustees with the consequences of a breach of trust, and 

to charge their representatives also, whether they derive benefit 
from the breach of trust or not. "(c) 

A trustee will not be charged, as a mortgagee, for what he has 
or might have received (d) ; he will not be charged with 
imaginary values(e), for he is a mere stake-holder. (/) nabtutv" 
But if there is wilful default(5'), or very supine neglect(^), 
he may be charged with more than he received, but the proof must 
be very strong, (i) 

" Where the trust-money is invested on an improper security, 
the trustee is liable for the loss to the estate and new trustees can 
realise from him the deficiency." The mode of enforcing this 
liability depends on the circumstances of the particular case. In 
some cases justice will be best done by realising the security and 
making him pay the deficiency ; but in some cases it may be right 
to make him pay at once the whole sum improperly invested and 
let him take the benefit of the security. "(j' ) The option is given 
to the cestui que trust to retain the securities or proceed to a fore- 
closure and in an action to which he is not a party, securities cannot 
be realised merely to ascertain their value. (^) 

If the trustee is about to abscond, the cestui que trust may 
apply under Order XXXVIII of the Code of Civil Proce- 
dure 1908, that the trustee may give security, and the Trustee 
Court may, if it thinks fit, issue a warrant to arrest the ab°"ond 
trustee and bring him before the Court to show cause why 
he should not give security for his appearance. The Court would 
probably only exercise its jurisdiction under this chapter if the 
cestui que trust had a vested interest, and would not interfere 
where the cestui que trust's interest was contingent. A present 



(o) Dornford v. Dornford, 12 Vcs., (/) Pybus v. Smith, 1 Ves., J., 193. 

129. {g) See Hawkins v. Hawkins, 1 

(6) Adair v. Shaw, 1 Sch. & Lef., Dr. & Sm , 75. 

272; The New Fleming Spinning and (A) Palmer v. Jones, 1 Vem., It4. 

Weaving Company, Ld. v. Ke-ssmoji (i) Palmer v. Jones, 1 Vem., 144. 

Naik, 9 Bom., 37.3. {j) Re Salmon, 42 Ch. D. (C. A.), 

(c) See also Raphael v. Boehm, 13 3.51 ; also Re Massingherds" settlement, 

Ves., 411, 490; Moons v. De Bernnhs, 63 L. T. N. S., 296, C. A.; Re Deane, 

1 Riiss., 305; Lord Monlford v. Lord 42 Ch. D. (0. A.), 9. 

Cadogan, 17 Ves., 489. (k) Bvtler v. Butler, 5 Ch. D.. 554 

0) Harnard v. Webster, Sel. Ch. 7Ch.D. (0. A.), 116; Jacfacn v. D/cfc/n- 

Ca., 53. son (19C3), 1 CK, 947. 

(e) Palmer v. Jones, 1 Vorn., 144 



188 LOSS BY ACCIDENT. [LBC. VII. 

vested interest, though capable of being divested, would be 
sufficient, (a) 

If a trustee dishonestly misappropriates or converts trust- 

property to his own use, or dishonestly uses or disposes 

breach of ^^ ^^^^ property in violation of any direction of law pres- 

trust. cribing the mode in which such trust is to be discharged, 

or of any legal contract, express or implied, which he 

has made touching the discharge of such trust, or wilfully suffers 

any other person so to do, he commits criminal breach of trust 

(Act XLV of 1860, s. 405), and is liable to be punished with 

imprisonment of either description for a term which may extend 

to three years, or with fine or with both (s. 406). And the Penal 

Code contains provisions (ss. 407, 408, 409) regarding criminal 

breach of trust by a carrier, wharfinger, or warehouse-keeper ; 

clerks or servants, public servants, bankers, merchants, or agents. 

At one time it was held in England, that a trustee could not be 

punished for stealing the trust-property, as he is, according to 

English law, the legal owner, and a man cannot steal his own 

property. (&) This absurdity has, however, been done away with by 

the Larceny Act ; and a trustee in England is now liable criminally 

as well as civilly. 

If a professional adviser wilfully advises a breach of trust, 

he will be liable to be suspended from practice, (c) And a 

Liability of trustee, also a professional man, who commits a breach of 

adviser'.""^ trust, is liable to the same penalty. (<Z) But the breach 

must be wilful ; and a professional man acting under 

instructions from the trustees, will not, as we have seen, be liable 

as a constructive trustee, unless he is aware of the intended breach 

of trust, (e) 

If a trustee is a member of a firm, and pays trust-moneys into 

the partnership account, the other partners will be liable for 

any loss occasioned by the breach of trust (/); and if one of 

a firm of solicitors in transacting business with trustees practices 

a fraud upon the trustees, the co-partners are liable, (g") 

Loss by If trustees neglect to take possession of the trust- 

accident, property, and to put it in position of security, they have 

(a) See Hawkins v. Howldn-s, 1 Br. (1898), 1 Ch., 212. 

& Sm., 75. (/) JEager v. Barnes, 31 Beav., 579 ; 

(16) 24 & 25 Vic, C. 96, ss. 80, 86. Thome v. Heard (1894), 1 Ch. (C. A.), 

(c) Goodwin t. GosneU, 2 Coll., 4.57 ; 599 ; Rhodes v. Monies (1895), 1 Ch. 
see the Lsgal Practitioners Act (C. A.), 236. See also Blyth v. Flad- 
(Aot XVIII of 1879.) gate (1891), 1 Ch., 337 ; Moore v. KnigU 

(d) In re Chandler, 22 Beav., 2.53. (1891), 1 Ch., 547. 

(e) Bamss v. Addy, L. R., 9 Ch., (g ) Sawyer v. Goodwin, 36 L. J. N. 
244; Mara v. Browne (1896), 1 Ch. S. Ch., 578 ; ionj v. £?»«/, W. N. (1871), 
(C. A.), 199, Soar v. Ashwell (1893), 134. 

2 Q. B. (C. A.), 390; Stokes v. Prance 



Lee. VII.J 



AGENT APPOINTED BY TRUSTEE. 



189 



Neglect to 
obey direc- 
tions in 
instrument 
of trust. 



premiums. 



committed a breach of trust, and will be liable for loss, even by 
fire, lightning, or any other accident, (a) 

If a trustee neglects to follow a direction to accumulate divi- 
dends(6), to enforce a transfer of stock(c), or the due 
creation of a charge(d), or to sell, and in consequence the 
property becomes deteriorated in value, he will be liable 
for any loss that may happen, (e) So, if he neglects to 
register or to execute a power which it was his duty to 
execute, he will be liable for loss.(/) 

If a trustee sufEers a policy of insurance to become forfeited 
through neglect to pay the premiums, he is bound to make 
good the loss to the cestui que trust. (g) But if a trustee ^^^ 
has no funds in hand, he will not be liable, (fe) If he 
advances the premiums hinoself, he Avill have a lien on the 
policy. (*) If there are no means of keeping up the policy, the 
Court will direct it to be sold.(y) 

If a trustee has wrongfully sold the trust-estate to a purchaser 
for valuable consideration without notice, the cestui que 
trust may either compel the trustee to purchase other 
lands of equal value, which lands will be held upon the 
trusts originally provided(A;), or he may take the proceeds 
of the sale with interest, or the present estimated value of 
the lands sold, after deducting any increase of price caused 
by subsequent improvements. (Z) 

As a rule, an agent appointed by a trustee cannot be made 
accountable for any losses incurred hj him while acting 
as agent, (m) If, however, he goes beyond his authority ^^" ' 
as an agent, by accepting a delegation of trust or by fraudulently 
colluding in a breach of trust, and loss ensues, he will be liable as a 
constructive trustee, (w) The trustees are responsible for the acts 



Sale to pur- 
chaser for 
valuable 
consideration 
without 
notice. 



(a) Caffrey v. Darby, 6 Ves., 496 : 
see also Cocker v. Quayle, 1 R. & M., 
535; Fyler v. Fyler, 3 Beav., .568; 
KeUaioay v. Johnson, 5 Beav., 324 ; 
Munch V. CockereU, 5 M. & Cr., 212 ; 
Gibbins v. Taylor, 22 Beav., 344. 

(6) Pride v. Fooks, 2 Beav., 430. 

(c) Fenwick v. GreenweU, 10 Beav., 
412. 

(d) Cleary v. Fitzgerald, L. R., 7, 
It., 229. 

(e) Devaynes v. Eobinson, 24 Bear., 
86 ; ScuUhorpew. Tipper, L. R., 13 Eq.. , 
232 ; In re Norrington, L. E., 13 Ch 
Div., 664. 

(/) Lewin, 12th Eda., 1166, citing 
Luihor V. Bianconi, 10 Ir. Ch. Rep., 
194. 



(?) Lewin, 12th Edn., 1165, citing 
Marriott v. Kinnersley, Taml., 470. 

(A) Hobday v. Peters (So. 3), 28 
Beav., 603 : see, however, Kingdon v. 
Castleman, 46 L. J., Ch., Hi. 

(t) Clacks. HoUand, 29 Bear., 273. 

(j) Hill V. Teenery, 23 Bear.. 16. 

{k) Mansell v. Mansell, 2 P. W., 68 ; 
Vermon v. Vadrey, Barn., 303. 

{1} Attorney-General v. Burgesse.') of 
East Retford, 2 M. & K.. 35 ; but see 
Denton v. Davies, 18 Ve.s., 504. 

(m) Morgan v. Stephens, 3 Giff., 
235 ; Marshall v. Shddeii, 7 Hare, 428. 

(n) Morgan v. Stephens, 3 Giff., 
235; Hardy V. Caley, 33 Beav., 365; 
Myler v. Fitzpatrick, 6 Mad., 360 ; 
M\irdle v. Oanghan (1903), 1 I.'- R., 



190 AGENT APPOINTED BY TRUSTEE. [LBC. VII. 

of their agents, and must be made parties to a suit to recover 
moneys lost by the agent, (a) 

A firm of solicitors having been employed by the trustees of 
a will to receive the proceeds of the testator's real estate which had 
been taken by a Kailway Company, paid over the money to one of 
such trustees without the receipt or authority of the other. The 
money having been lost to the estate by the insolvency and death 
of the trustee to whom it was paid, it was held, that the receipt of 
one trustee only (though also an executor) was not a sufficient 
discharge to the solicitors for the money which they had received 
by the authority of the two, and that they were personally liable 
to make good the loss which had resulted to the trust-estate from 
such improper payment. (&) 

The tendency of recent decisions is to avoid making an agent 
responsible, unless there has been dishonest knowledge on 
Addy" ^ ^^ Tj^avt. In Barnes v. Addy(c) Lord Selborne, L. C, said : 

" It is equally important to maintain the doctrine of trusts 
which is established in this Court, and not to strain it by unreason- 
able construction beyond its due and proper limits. There would 
be no better mode of undermining the sound doctrines of equity 
than to make unreasonable and inequitable applications of them. 

" Now in this case we have to deal with certain persons who 
are trustees, and with certain other persons who are not trustees. 
That is a distinction to be borne in mind throughout the case. 
Those who create a trust clothe the trustee with a legal power and 
control over the trust-property, imposing on him a corresponding 
responsibility. That responsibility may no doubt be extended in 
equity to others who are not properly trustees, if they are found 
either making themselves trustees de son tort, or actually partici- 
pating in any fraudulent conduct of the trustee to the injury of the 
cestui que trust. But, on the other hand, strangers are not to be 
made constructive trustees merely because they act as the agents 
of trustees in transactions within their legal powers — transactions, 
perhaps, of which a Court of Equity may disapprove, unless those 
agents receive and become chargeable with some part of the trust- 
property, or unless they assist with knowledge in a dishonest and 
fraudulent design on the part of the trustees. Those are the 
principles, as it seems to me, which we must bear in mind in dealing 
with the facts of this case. If those principles were disregarded, 
I know not how any one could, in transactions admitting of doubt 
as to the view which a Court of Equity might take of them, safely 
discharge the office of solicitor, of banker, or of agent of any sort 

107; Se Barney (1892), 2 Ch., 265; (a) Roliertson v. Armstrong, 28 

MidgUy v. Midgley {IS93), 3 Ch. (C. A.), Beav., 123. 

282 ; Mara v. Browne (1890), 1 Ch. (C. (6) Lee v. Sankey, L. E., 15 Eq., 204. 

A), 199. (c) L. R., 9 Ch., 251. 



Lee. VII. J LIMITATION. 191 

to trustees. But on the other hand, if persons dealing honestly as 
agents are at liberty to rely on the legal power for the trustees, and 
are not to have the character of trustees constructively imposed 
upon them, then the transactions of mankind can safely be carried 
through ; and I apprehend those who create trusts do expressly 
intend, in the absence of fraud and dishonesty, to exonerate such 
agents of all classes from the responsibilities which are expressly 
incumbent by reason of the fiduciary relation, upon the trustees. "(a) 

Limitation cannot be pleaded as a bar to a suit for compen- 
sation for breach of trust, where the trust is express, j . . . 
Section 10 of Act IX of 1908 provides, that " no suit 
against a person in whom property has become vested in trust for 
any specific purpose, or against his legal representatives or assigns 
(not being assigns for valuable consideration)!^) for the purpose of 
following in his or their hands such property or the proceeds thereof, 
or for an account of such property or proceeds, shall be barred by 
any length of time."(c) These words meajn, that where a trust 
has been created expressly for some specific purpose or object, and 
property has become vested((j!) in a trustee upon such trust (either 
from such person having been originally named as trustee, or having 
become so subsequently by operation of law), the person or persons 
who for the time being may be beneficially interested(e) in that 
trust, may bring a suit against such trustee (/) to enforce that 
trust at any distance of time, without being barred by the law of 
limitation. (^) The words ' in trust for a specific purpose ' are 
intended to apply to trusts created for some defined or particular 
purpose or object as distinguished from trusts of a general nature, 
such as the law imposes upon executors or others who hold recog- 
nized fiduciary positions ; they are used in a restrictive sense to 
limit the character or nature of the trust attaching to the property 
which is sought to be followed. (A) 

Where after the declaration of specified trusts in particular 
properties, a residue is left undisposed of under the deed or comes 
into being as the result of a void direction, no specific trust enures 
in respect of such residue in favour of the heirs at law.(i) But 



(o) See also Soar v. Ashwell (1893), money Dossee, 4 Cal., 455, per Gartli, 

2 Q. B., 390 ; Narrondas v. Narrondas, C. J. 
31 Bom., 418. (h) Greender Chunder Ghose v. Mac 

(6) See Subbayya v. Mahomed kintosh, 4 Cal., 897; 
Mustafa, 32 M. L. J., 85. (i) Dickenson v. Teasdale, 1 D. J. &. 

(c) See Real Property Limitation S., 52 ; Vundra Vandas v. Cursondos, 

Act, 1833 (3 & 4 Will. IV, e. 27), s. 25. 21 Bom., 646 ; Mathuradas v. Vandra 

{d) See Tholasinga v. Vedachelayya, vandas, 31 Bom., 222 ; Bhvrahhai v. 

22 M. L. T., 388 : 42 I. C, 544. Bai Rukmani, 32 Bom. 394. Mere 

(e) See Sanga v. Baha, 20 Mad., charge will not amount to a specific 

398. trust {Giriah v. Anundo, 15 Cal., 66), 

(/) Wink V. Maharaj, 25 Cal., 642. but it may be so; Commissioners of 

(g) Kherodenumey Dossee v. Doorga- Charitable Donations v. Wybrants, 2 



192 LIMITATION. [Lec. VII. 

where under the settlement the whole estate is vested in trust, the 
trust will continue as express, though the donations or bequests 
are not sufficient to exhaust the whole, (a) If however, the trusts 
declared are sufficient to exhaust the whole estate, but fail for 
invalidity or uncertainty, the instrument excludes the idea of an 
express trust in favour of the settlor or his heirs and a trust in 
their favour not as express under the instrument but as resulting 
against its provisions, that is, created by law/aw^ de mieux, as the 
best arrangement which the law regards as possible in difficult 
circumstances. (&) 

In Soar v. Ashwell(c) Kay, L. J., said : " First, the doctrine that 
time is no bar in the case of express trusts has been extended to- 
cases where a person who is not a direct trustee nevertheless assumes 
to act as a trustee under the trust, ((i) This extension of the doctrine 
is based on the obvious view that a man who assumes without 
excuse to be a trustee ought not to be in a better position than if 
he were what he pretends. Secondly, the rule as to limitations 
of time which has been laid down in reference to express trusts has 
also been thought appropriate to cases where a stranger participates 
in the fraud of a trustee, (e) Thirdly, a similar extension of the 
doctrine has been acted on in a case where a person received trust- 
property and dealt with it in a manner inconsistent with trusts of 
which he was cognisant."(/) 

In 1860, certain shares in a company then formed were allotted 
to S., on the understanding, as the plaintiff alleged, that 120 of 
such shares should, on the amount thereof being paid to S., be 
transferred to, and registered in the books of, the company in the 
names of the plaintiffs. In 1862, the plaintiffs completed the 
payment to S. in respect of the shares, and during his lifetime, 
received dividends in respect of the shares. S. died in 1870 leaving 
a will, probate of which was granted to the defendant as his executor. 
In a suit brought by the plaintiffs, after demand of the shares from 
the defendant, and refusal by him to deliver them, to compel the 

Jon. & Lat., 182. See Lewin, 12th Abdul Latijf, 37 Bom., 447; but see 

Edu., 1128 ; Nanalal v. Harlochan, 14 Casaamally v. Sir Currimbhoy, 36 Bom 

Bom., (12) 214. 
476. (c) (1893), 2 Q. B. (C. A.), 390. 

(a) Vundravandofi v. Cursondas, 21 {d) Life Association of Scotland v. 

Bom., 646 ; Cowasji v. R. D. Setna, 20 Siddal, 3 DeG. F. & J., 58. Bee 

Bom., 511 ; Salter v. Cavanagh, 1 Dr. Jugal v. Lakshmandas, 23 Bom., 659 ; 

& Wal., .^68 ; Patrick v. Simpson, 24 Mooshabhai v. Takoobbhai, 29 Bom. 

Q. B. D., 128 ; Soar v. Ashwell (1893), 267 ; Sheo Shankar v. Ram, 24 Cal., 

2 Q. B., 390 ; Rochefoucauld v. Boustead 77 ; Radhikamohan v. Bonnerjee, 10 

(1897), 1 Ch., 196; Lister v. Pickford, C. W. N., 366. 

34 Beav., 576 ; Ghurcher v. Martin, 42 (e) Barnes v. Addy, L. R., 9 Cli., 
Ch. D., 312. 244 ; also Mara v. Browne (1896), 1 Ch. 

(6) Mathuradas v. Vandrawandas, (C. A.), 199 ; Stokes v. Prance (1898), 
31 Bom., 222 ; Mojilalv. Oaurishankar, 1 Ch., 212. 

35 Bom., 49; Mahomed Ibrahim v. (/) iee v. Sowifce^, L. R., 15Eq., 204.- 



Lee. VII.] WILFIJL DEFAULT. 193 

defendant to transfer the shares to the plaintiffs, and register the 
same in their names, the plaintiff's case was, that the shares had 
been held in trust for them, and that, consequently, their suit was 
not barred by lapse of time. It was held, that the transaction 
between S. and the plaintiffs did not amount to " a trust for a 
specific purpose."(a) If the Court of Wards takes charge of the 
estate of a deceased person, the Government does not constitute 
itself a trustee for the members of the family. But there may be 
circumstances where the Government by express acts may render 
themselves liable as trustees. (6) 

In assuming dominion over the Satara Principality, in 1848 
the Government of India through the Collector took over the Satara 
treasury and issued a notice to the heirs of C. to withdraw a sum of 
money then standing to their credit in the treasury accounts in 
1857. Owing to the adverse claims among the heirs of C, the 
Assistant Collector ordered the production of a certificate of heirship. 
But the certificate could not be produced till 1907, when on demand 
the Government refused to pay. It was held that the order of 
1860 and the notice of 1857 were a sufficient declaration of trust and 
that the money became vested in the Government for a specific 
purpose when the Satara treasury was taken over.(c) 

It is a general rule that a plaintiff cannot have any relief for 
which no case has been made on the pleadings, and, there- 
fore, if a cestui que trust sues his trustee for an account, and ^ f it 
the plaintiff seeks relief against wilful default, he must in 
his pleadings allege some specific act of wilful default(«^), and pray 
for consequential relief and he must prove at least one act of 
wilful neglect and default, (e) But this rule may not apply in a 
case where breach of trust is the foundation of the action. (/) 

If at the hearing no act of wilful default is proved, and on 
taking the ordinary accounts, documents are discovered which 
might have shown wilful default, the Court will not direct any 
further inquiry as to wilful default, (gf) But if the plaintiff pray an 
account with interest, and at the original hearing an account is 
directed, and in the course of the accounts improper balances appear 
to have been retained, interest on the balances may be asked for 
at the hearing on further directions. (A) And if relief against a 



(a) Ahmed Mahomed Palel v. Adjein 606 ; Smith v. Armitage, 24 Ch. D., 727. 
Dooply, 2 Cal., 323. (e) Sleight v. Lawson, 3 K. & J., 292. 

(b) Viziaramaraju v. Secretary of (/) ^e >rn(?fe«o» (1908), 1 Ch., 789. 
State, 8 Mad., 525 (P. C); Kamaraju (g) Coope. v. Carter, 2 D. M. G. 
V. Secretary of State, 11 Mad., 309 292: and see Se Fryer, 3 K. & J.' 
(F. B). 317 ; Partington v. Reynolds, 4 Drew.' 

(c) Secretary of State v. Bapuji, 39 253 ; Re Delevante, 6 Jur., N. S., 118 • 
Bom., 672, following Scott v. Bentley, Brooker v. Breaker, 3 Sm. & Giff.^ 475 ' 
1 K. & J.. 281. (h) Shaw v. Turbett. 13 Ir. Ch. Kei 

(d) Mayer v. Murray, 47 L. J., Ch., 476. ' ' 

A, M 13 



194 CONCURRENCE. [LBC. VII. 

breach, of trust be prayed, and at the original hearing the usual 
accounts only are directed, but with an enquiry who are the parties 
interested, it is not too late to ask relief against the breach of trust 
on further directions, as before that time the Court was not in a 
condition to deal with the question, (a) 

And in a redemption-suit it is not necessary that the plaintifE 
should charge wilful default ; nor is the case altered, if tlie deed 
though in substance a security, be in the form of a deed of trust. (&) 
A mortgagor can always have an account of rents and profits which 
a mortgagee in possession might, but for his wilful default, have 
received, though no charge of wilful default has been made, the 
reason being that the Court looks with less favour on the case 
of a mortgagee in possession than on that of a mere gratuitous 
trustee, (c) 

If the cestuis que trustent are persons who are competent to 
contract((i), a,nd they have assented to the wrongful act on 
Concur^nce. ^-^q part of the trustees, the Court will endeavour to deliver 
Act, s. 23. tlie trustees from their liability to make good any loss(e), 
and the cestuis que trustent will have to bear it, whether 
they did or did not derive any benefit by the breach. (/) If some 
of the cestuis que trustent are not competent to contract, the loss 
will be thrown, in the first instance, upon those who were sui 
juris and who consented to the breach of trust, but the trustees 
will remain liable to make up any deficiency. "The rule of the 
Court in all cases is, that if a trustee errs in the management of 
the trust, and is guilty of a breach of trust, yet if he goes out of 
the trust with the approbation of the beneficiary, it must first be 
made good out of the estate of the person who consented to 
it."(5') And the Court will enquire whether and when the cestui 
que trust had notice of the breach of trust. (A) No man, having a 
right to require the performance of a duty, who becomes a party 
to the delay in the performance of it, can complain of any conse- 
quences which may arise from such delay. There is a marked 
distinction between the degree of knowledge and sanction 



[a) Patienden v. Hob'son, 1 Eq. Rep., bers (1896), 1 Ch., 865. 

28. {/) Fletcher v. CoUis (1905), 2 Ch. 

(6) O'Connell v. O'Callagham, lolx. (C. A.), 24-. 

Ch. Rep., 31. (g) Trafford v. Boehm. 3 Atk., 444. 

(0) Mayer v. Murray, 47 L. J., Ch., ;oer Lord Hardwioke ; Lord Montford v. 

fl06. Lord Cadogan, 17 Ves., 485; 19 Ves., 

id) See Lewin, 12th Edn., 1196. 635; Booth y. Booth, 1 Beav., 130; 

(e) See Aganoor v. Hogg, Boul., 38 ; Birks v. Micklethwarite, 33 Beav., 409 ; 

Brice^. Stokes, llMcs^^ii; Thompson Tickmr v. Old, L. R., 18 Eq., 422 ; 

V Lmch, 22 Beav., 324: 8 D. M. G., also Moxlmrn v. Grant (1900), 1 Q. B. 

550; (?riffi«Asv. Porter, 25 Beav., 236; (C. A.), 88; Tower.'i v. African Tug 

Crichton v. Crichton (1896), 1 Ch. (C. Company (1904), 1 Ch. (C. A.), 558. 

A.), 870 ; Evans v. Benyon, 37 Ch. D. (h) Broadhurst v. Balguy, I Y. & C. 

{C. A.), 329 ; Chillingworlh v. Cham- C. C, 16. 



Lee. VII.] FEAUD. 195 

necessary for the purpose of exonerating a trustee from that which 
was clearly a breach of trust, and that which is necessary to preclude 
the cestui que trust from complaining of that not being done, the 
omission to do which, with the concurrence of the cestui que trust, 
never constituted a breach of trust. In the first case, it is used to 
release a right and discharge an obligation already perfected by the 
breach of trust ; in the latter, only to prevent a right from ariaing 
from the non-performance of a duty which it was competent for 
the cestui que trust to dispense with.(a) " It is established by all the 
cases," said Lord Eldon(6), " that if the cestui que trust joins with 
the trustees in that which is a breach of trust, knowing the circum- 
stances, such a cestui que trust can never complain of such a breach 
of trust. I go further, and agree, that either concurrence in the act, 
or acquiescence without original concurrence, will release the 
trustees ; but that is only a general rule, and the Court must 
inquire into the circumstances which induced concurrence or 
acquiescence ; recollecting in the conduct of that inquiry, how 
important it is, on the one hand, to secure the property of the cestui 
que trust, and on the other, not to deter men from undertaking 
trusts, from the performance of which they seldom obtain either 
satisfaction or gratitude." 

Where trustees allowed propert}'^ settled upon the marriage of 
a lady to remain uninvested in the hands of one of their co-trustees, 
the lady being aware of the facts, and the trustee with whom the 
money was, subsequently became insolvent, it was held, that the 
co-trustees had been guilty of a breach of trust, but that the lady 
was 'debarred by acquiescence from obtaining any relief from 
them.(c) 

If the trustees have induced the cestuis que trustent to 
assent to the breach of trust by fraud, their liability ^u^s"ees^ 
will, of course, remain unaltered. (5) 

If cestuis que trustent, who are not competent to contract, 
fraudulently induce their trustees to commit a breach of 
trust, they are debarred from afterwards calling upon the f^/tf"t 
trustees to make good any loss, (e) 

Cestuis que trustent may debar themselves from Acquies- 
obtaining relief in respect of a breach of trust either by i^^^^ -j- 
direct acquiescence in the act(/), or else by standing Act, s. 23. " 

(o) Hunch V. Cocherell, 5 My. & Cr., (d) Walker -v. Symonda, 3 Swanst., 1. 

207, 218. (e) See Lewin, 12th Edn., pp. 1196- 

(6) Walker v. Symmds, 3 Swanst., 7 ; see also Woolf v. II'ooZ/ (1899), 

1, 64. 1 Ch., 343. 

' (c) Jones. V. Higgins, L. R. , 2 Eq., ( / ) Styles v. Guy, 1 Mac. & G., 427 ; 

■38; Taylor v. Carttvright, L. B., 14 Graham y. Birkenhead Railway Co., 

Eq., 175 ; see also Hvlme v. Tenant, 1 2 Mac. & G., 156 ; Kent v. Jackson. 14 

B. C. C, 20. Beav., 384. 



196 ACQOTESCENCE. [LCC. VII. 

by and allowing the wrongful act complained of to be donfr 
witbout objection. (a) 

The term ' acquiescence ' will have different significations 
attached to it, according to whether the acquiescence alleged, 
occurs while the act acquiesced in is in progress, or only after it 
has been completed. " If," said Thesiger, L. J.(6), " a person 
having a right, and seeing another person about to commit, or in 
the course of committing, an act infringing upon that right, stands 
by in such a manner as really to induce the person committing the 
act, and who might otherwise have abstained from it, to believe 
that he assents to its being committed, he cannot afterwards be 
heard to complain of the act. This, as Lord Cottenham said in 
The Duke of Leeds v. Earl of AinJierst{c), is the proper sense of the 
term ' acquiescence,' and in that sense may be defined as quiescence, 
under such circumstances as that assent may be reasonably inferred 
from it, and is no more than an instance of the law of estoppel by 
words or conduct. ((?) But when once the act is completed 
without any knowledge or assent upon the part of the person whose 
right is infringed, the matter is to be determined on very different 
legal considerations. If therefore both the parties to the suit were 
equally aware of the real facts, no estoppel can arise, (e) A right 
of action has then vested in him which, at all events, as a general 
rule, cannot be divested without accord and satisfaction or release 
under seal. Mere submission to the injury for any time short of 
the period limited by Statute for the enforcement of the right of 
action, cannot take away such right(/), although imder the name 
of laches it may afford a ground for refusing relief under some 
particular circumstances(^) ; and it is clear that even an express 
promise by the person injured that he would not take^ any legal 
proceedings to redress the injury done to him, could not by itseK 



(a) Duke of Leeds v. Earl of Amherst, PaUonjee, 22 Bom., 1. 

2 PMllips, 12c> ; PhilUpson v. Gatty, 7 (e) Ramsdcn v. Dyson, 1 H. L., 129 ; 

Hare, 523 ; Stafford v. Stafford, I DeG. Ranchodlal v. Secretary of State, 35 

& J., 202 ;Jordony. Money,5Ti.Ij.C., Bom., 182. See Kunhammed-r. Nara- 

185; Rennie v. Young, 2 DeG. & J., yanan, 12 Mad., 320; Dharmadas v. 

136; Blake v. Gale, 31 Ch. D., 196; Amulyadhan, 33 Cal., 1119. 

Civil Service Musical Instrument Asso- ( /) Kissin Gopal v. Kali Prosonno, 

ciationv. Whiteman, 68 L. J. Ch., 484; 33 Cal., 633; Thakme v. Bomanji, 27 

Mills V. Fox, 37 Ch. D., 153. Ismail Bom., 515 : Peer Mahomed v. Mahomed 

Khan v. Jaigur, 27 Cal., 570 ; Ebrahim, 29 Bom., 234. See also Md. 

Ardeshier v. Mancher Show, 12 Bom. Hafizullah v. Satrukhan, 36 1. C, 1001 ; 

L. R., 53. Appan Charan v. Kyause Ma, 41 I.C., 

(6) De Bussche v. Alt, L. R., 8 Ch. 722. 

Div., 314 ; see Beni Ram v. Kundun, (g) See Mokund Lai v. Chotay Lai, 

21 All., 496; Sarat v. Gopal, 20 Cal, 10 Cal., 1061; Benodi v. Soudaminy, 16 

296. Cal., 252 ; Juala v. Khuman, 2 All., 7 ; 

(c) 2 Phill., 47, 123. Jamnadas v. Atmaram, 2 Bom., 133; 

(d) Anandachandra v. Parbatinath, Barada Prasad v. Gajendranath, 13 
4 C. L. J., 198 ; see Jagmokundas v. C. W. N,, 557 : 9 C. L. J., 383. , 



lee. VII.] DELAY. 197 

constitute a bar to such proceedings, for the promise would be 
without consideration, and therefore not binding."(a) 

In order that acquiescence may be successfully pleaded as a 
bar to a suit for relief in respect of a breach of trust, there 
must have been such delay as amounts to laches on the 
part of the cestui que trust.(b) No precise time can be fixed, but 
delay for twenty years will disentitle the cestui que trust to relief (c), 
though mere knowledge without an action for three, four, ten or 
twelve years has been held not to destroy the right to impeach the 
transaction, (ci) The omms lies on the party relying on acquiescence 
to prove the facts from which the consent of the cestui que trust is 
to be inferred, (e) It is not the business of a cestui que trust to inform 
a trustee of his duty, and a cestui que trust will not, therefore, be 
barred on the ground of acquiescence, because he has not made 
enquiries which, if made, would have brought the fact that a breach 
of trust had been committed to his knowledge. (/ ) Nor will he be 
bound by accepting some portion of his claim before suit.(5r) A 
cestui que trust, whose interest is reversionary, is apparently not 
bound to take proceedings to rectify a breach of trust, and will not 
be barred by acquiescence because he does not promptly act. 
" Length of time," said Turner, L. J.(h), "where it does not operate 
as a statutory or positive bar, operates, as I apprehend, simply as 
•evidence of assent or acquiescence. The two propositions of a 
bar by length of time and by acquiescence are not, as I conceive, 
distinct propositions. They constitute but one proposition, and 
that proposition, when applied to a question of this description, is, 
that the cestui que trust assented to the breach of trust. A cestui 
que trust, whose interest is reversionary, is not bound to assert his 
title until it comes into possession, but the mere circumstance that 
he is not bound to assert his title, does not seem to me to bear upon 
the question of his assent to a breach of trust. He is not, so far as 
I can see, less capable of giving such assent when his interest is in 
reversion than when it is in possession. Whether he has done so 
or not, is a question to be determined on the facts of each particular 
case." ..." I am not prepared to say that where the trust 



(o) And see Lewin, 12th Edn, 1120. Re Crosss, 20 Ch. D. (C. A.), 109; 

(6) Athikarath v. Erathanikai, 21 Rochefoucauld v. BouMead (1897), 1 Ch. 

Mad., 42; Peer Mahomed v. Mahomed (C. A.), 196; Se lFor»«am, 46 L. T. N. 

Ebrahim, 29 Bom., 234; Uda Begum S., 584. 

V. Imamuddin, 1 All, 82. (c) Life Association of fScolland v. 

(c) Thomson v. Eastwood, L. R., 2 Siddal, 3 DeG. F. & J., 77, per Lord 
App. Cas., 238, per Lord Caims ; see Campbell, L. C. 

also Gregory v. Gregory, G. Coop., 201 ; ( / ) Thompson v. Finch. 22 Beav., 

Roberts v. Tunsiall, 4 Hare, 257 ; Baker 325 ; 8 D. M. G., 560 ; Life Association 

V. Read, 18 Beav., 398. Bhaskarappa v. of Scotland v. Sidddl, 3 DeG. F. & J., 73. 

■GoUedor of North Canara, 3 Bom., 452. {g) Thompson t. Finch, 22 Beav., 

(d) Hanchett v. Briscoe, 22 Beav., 316; 8 D. M. G., 560. 

496 ; Re Jackson, 44 L. T. N. S., 467 ; (h) Life Association of Scotland v. 

Farrant v. Blanchford, 11 W. R., 178; Siddal, 3 DeG. F. & J., 72. 



198 EELEASE AND CONFIRMATION. [LCC. VII. 

is definite and clear, a breach of trust can be held to have been 
sanctioned or concurred in, by the mere knowledge and non- 
interference on the part of the cestui que trust before his interest 
has come into possession. "(a) It is almost impossible to attribute 
laches to a person whose interest is reversionary, because he does 
not sue before it vests in possession. (&) But knowledge of the 
facts may and ought, in some cases, to be presumed from great 
lapse of time.(c) 

Cestuis que trustent, who are competent to contract, may 

release their trustees from liability to account for a breach 

Release pf trust, or they may confirm the transaction, in either of 

mation. ' which cases they will be debarred from proceeding against 

the trustees. ((?) 

If, however, the transaction in respect of which the release is 
given is null and void, the release will not bar the cestui que trust, (e) 

A cestui que trust who releases the principal in a fraud cannot 
go on against the other parties, though they would have been 
secondarily liable. (/) 

In order that cestuis que trustent may be debarred from obtain- 
ing relief in lespect of a breach of trust on any of the grounds which 
I have mentioned, they must be c :mpetent to contract, must have 
full information of all the facts relating to the breach of trust, 
must be aware of the relief to which they would be entitled in a 
Court of Equity, and must not have acted under compulsion, (gf) 
A cestui que trust who has lately come of age should have inde- 
pendent legal advice. (A) 

" A trustee, who is liable for a loss occasioned by a breach of 

No set-oft trust in respect of one portion of the trust-property, cannot 

in respect set-ofE against his liability, a gain which has accrued to 

of breach another portion of the trust-property through another and 

of trust. distinct breach of trust." " When there are two separate 

funds subject to trusts," said Kinderslev, V. G.(i), "and the 

. trustees commit a breach of trust as to one, by which it is 

iUt'^s! 24."^'^ ^°^*' •'■ tliipk it is impossible to permit the trustees to say 

' ' ' 'we have improved the other fund, and that fund is bound 

to make up the loss on the other.' That I cannot hold. If the 



(a) In re Six, 56 Sol. J., 573. (c) Thomson v. Eastwood, L. R., 2 

(6) Tayhr V. Cartwright, L. R., H App. Cas., 215. 

Eq., 176. ( / ) Thomson v. Harrison., 2 Bro. C. 

(c) Lifi Association of Scotland v. C, 164. 

Siddal, 3 DeG. F. & J., 77. (<?) See Lewin, 12th Edn., 1200-1. 

(d) French v. Hobson, 9 Ves., 103 ; (h) Lloijd v. Attwood, 3 DeG. & J., 



Parry, 4 Russ., 272; 615. 
Aylivin v. Bray, 2Y. & J., 518 (»); (i) Wiles v. Chesham, 2 Drew., 258,. 

Cresswett v. Detvell, 4 Giff., 465. p. 271. 



Lee. VII.] trustee's liability. 199 

trustees have lost one part of the settled funds, they must answer 
for it, whatever may be the improvement of the other part."(a) 

One trustee is not as such liable for a breach of trust com- 
mitted by his predecessor(6), or by his co-trustee. The Liability 
leading case upon this point is Townley v. Sherborne{c), for breach 
where it was resolved by all the Judges, " that where lands oi trust by 
or leases were conveyed to two or more upon trust, and one co-taistees^"'^ 
of them receives all, or the most part of the profits, and Indian 
after dieth or decayeth in his estate, his co-trustees shall Trusts Act, 
not be charged, or be compelled in this Court (the Court of ^^" ^^' 
Chancery) to answer for the receipts of him so dying or decayed, 
unless some practice, fraud, or evil dealing appear to have been in 
them to prejudice their trust ; for they being by law joint tenants 
or tenants-in-common, every one by law may receive either all or 
as much of the profits as he can come by, and if two executors be, 
and one of them waste all, or any part of the estate, the devastavit 
shall, by law, charge him only, and not his co-executor ; and in 
that case, equitas sequitur legem, there having been many 
precedents that one executor shall not answer, nor be charged 
for the act or default of his companion. 

" And it is no breach of trust to permit one of the trustees to 
receive all or the most part of the profits, it falling out many times 
that some of the trustees live far from the lands, and one put in 
trust out of other respects than to be troubled with the receipt of 
the profits."(rf) 

And it was further resolved, that " if, upon the proofs or 
circumstances, the Court be satisfied that there be dolus malus, or 
any evil practice, fraud, or ill-intent in him that permitted his 
companion to receive the whole profits, he may be charged though 
he receive nothing."(e) 

It is now settled, overruling the earlier cases, that a trustee 
who joins with his co-trustees in a receipt for trust- money 
when it is indispensable that he should do so for conformity, ?''."!*^^.^ 
will not, from that act alone, be made liable for any mis- receipt for 
application of the trust-property by his co-trustees into conformity, 
whose hands it comes. '"' It seems," said Lord Cowper(/), Indian Trusts 
" to be substantial injustice to decree a man to answer ' 

for money which he did not receive, at the same time that the 



(a) .See also Dimes v. Scott, 4 Riiss., Satya Kumar v. Satya Kripal, 10 C. L. 

195; Fletcher v. Green, 33 Beav., 426; J., 503. 

Re Barker, 77 L. T. N. S., 712 : 46 W. (e) Lakshmi Chand v. Jai Kuvarbai, 

R., 296. 29 Bom., 170 ; Mahmood v. Rodrigues, 

(6) Tebbs v. Carpenter, 1 Madd., 290. 7 Bom. L. R., 691. 

(c) Bridgman, 35. (/) Fellows v. Mitchell, 1 P. Wms., 

(d) Williams v. Nixon, 2 Beav., 472 ; 82. 



200 trustee's liability. [Lee. VII. 

charge upon him by his joining in the receipts is but nominal."(a) 
" When the administration of the trust is vested in co-trustees, a 
receipt for money paid to the account of the trust must be 
authenticated by the signature of all the trustees in their joint 
capacity, and it would be tyranny to punish a trustee for an 
act which the very nature of his ofiSce will not permit him to 
decline."(&) The trustee who seeks to be discharged from liability, 
on the ground that he only signed the receipt for conformity, 
must show that the money acknowledged to have been received 
by all, was in fact received by the co- trustees, and that he only 
joined for conformity, (c) A joint receipt will charge trustees in 
solido each, if there is no other proof of the receipt of the money. 
As if a mortgage is devised in trust to three trustees, and the 
mortgagor, with his witness, meets them to pay it off ; the money 
is laid on the table, and the mortgagor, having obtained a re- 
conveyance and receipt for his money, withdraws, each trustee 
is answerable in solido. (d) 

And where it cannot be distinguished how much was received 
by one trustee, and how much by the other, each will be charged 
with the whole ; for, in such case, the trustees are to blame for not 
keeping distinct accounts. It is like throwing corn or money into 
another's heap, where there is no reason that he who made the 
difficulty should have the whole ; on the contrary, because it cannot 
be distinguished he shall have no part.(e) 

But though a trustee joining in a receipt for conformity may. 

Trustee Under certain circumstances, escape liability • for loss 

giving incurred by the acts of his co-trustee, he will remain liable, 

receipt if lie allows the money, for which he has given a receipt, 

see'to in*- *° remain uninvested for a long time(/), or if he sanctions 

vestment. an improper investment. (gr) " Though," said Lord 

Indian Trusts Bldon{fe), " a trustee is safe, if he does no more than 

Act, s. 26. authorize the receipt and retainer of the money as far as 

the act is within the due execution of the power, yet, if it is proved 

that a trustee, under a duty to say, his co-trustee shall not retain 

the money beyond the time during which the transaction requires 

retainer, and says, with his knowledge, and therefore with his 

consent, the co-trustee has not laid it out according to the trust, 

but has kept it, or lent it, in opposition to the trust, and the 

other trustee permits that for ten years together, the question 

turns upon this — not whether the receipt of the money was right, 

(a) See also Brice v. Stokes, 11 Ves., (e) FeUows v. Mitchell, 1 P. ATms., 

319 ; In re Fryer, 3 K. & J., 317 ; and 81. 

Lewin, 12th Edn., 296, where the cases (/) Brice v. Stokes, 11 Ves., 319. 

are collected. ((/) Thompson >. Finch, 8 D. M. G., 

(6) Lewin, 12th Edn., 296. 560. 

(c) Brice v. Stokes, 4 Ves., 324. (h) Brice v. Stokes, II Yes., 319. 

(d) Westley v. Clark, 1 Edn., 369. 



Xec. VII.] trustee's liability. 201 

but whether the use of it, subsequent to that receipt, was right 
after the knowledge of the trustee, that it had got into a course of 
abuse ... As soon as a trustee is fixed with knowledge that 
his co-trustee is misapplying the money, a duty is imposed upon 
him to bring it back into the joint custody of those who ought 
to take better care of it. It is the duty of a trustee who signs 
a, receipt for conformity and allows the trust-money to get into 
the hands of his co-trustee, to ascertain for what purposes the 
money is required, and personally to ascertain that it has been 
■ duly invested. It is not enough for him to rely upon a statement 
by the co-trustee that such is the case. "(a) 

The law on the point now under consideration was discussed 
-at some length in Walker v. Symonds.(b) There a sum of ^ „ 
money secured upon a mortgage was assigned to three symondJ.' 
trustees, Donnithorne, Griffith, and Symonds, upon certain 
trusts. The mortgage was paid off in 1791, and the proceeds, with 
the approbation of Griffith and Symonds,, came into the hands of 
Donnithorne, who invested it in securities of the East India Com- 
pany, which were paid off in 1795. Donnithorne again received the 
money. The co-trustees allowed Donnithorne to retain the money, 
taking a bond from him, he promising to give a mortgage over some 
landed estates belonging to him. This he never did, and died in 
1796 insolvent ; a bill by the cestuis que trustent against Griffith 
and Symonds, to set aside a compromise of the breach of trust on 
the ground that it had been fraudulently obtained, was dismissed, 
Sir William Grant, M. R., considering that the fraud had not been 
proved. His Honor said, p. 41 : " What are the transactions ? 
The money had been properly laid out ; it had been paid in without 
^ny act of the trustees ; the trustees did no act to call in the money 
or change its situation ; they were obliged to receive it ; so far 
they were blameless. It came to Donnithorne's hands, and the 
trustees were not to blame in letting it come to his hands ; but they 
might have afterwards made themselves responsible, by merely not 
doing what was incumbent on them ; by permitting the money to 
remain a considerable time in the hands of their co-trustee, they 
might, without any positive act on their part, have made them- 
selves liable ; that will depend on the degree and extent of their 
■laches in suffering the money to remain in the hands of the trustee. 
Brice v. Stokes{c) proceeds upon the doctrine, that a trustee may 
become liable by knowing that his co-trustee had the money, and 
leaving it there. They being authorized to put the money out on 
mortgage, it would be rather hard to say they were guilty of laches 
hy giving Donnithorne a httle time to find a mortgage, taking his 



(a) Hanbury v. Kirkland, 3 Sim., L. R., 691. 
.26.5; Thompson v. Fiiich, 8 D. M. G., (6) 1 Swanst., 1. 

-560; Mahmood v. Sodriguea, 7 Bom. (c) 11 Ves., 319. 



202 trustee's liability. [Lec. VII^ 

bond in tte meantime." On appeal the decision of Sir William 
Grant was reversed, and an enquiry was directed as to the acts of 
the trustees as to the receipt and placing out of the trust-moneys 
up to the date of Donnithome's death. On the case coming on for 
further directions, Lord Eldon said(a) : " The case comes back 
with a report stating a clear breach of trust in leaving the trust- 
fund in the situation represented from 1791 to 1793 and from 1793- 
to 1795. The report states that the money was laid out with the 
consent of the trustees, in India bills, payable to Donnithome ; 
palpable breach of trust, by placing the fund imder his control, 
secured by httle more than a promissory note payable to himself. 
It was probable that in 1793 he would receive the money, and it 
would be lodged in his hands, — and I repeat, that although the 
Court in directing an inquiry will proceed as favourably as it can 
to trustees who have laid out the money on security from which 
they cannot with activity recover it, yet no Judge can say that 
they are not guilty of a breach of trust, if they suffer it to he out on 
such a security during so long a time. (6) . . . The trustees 
were guilty of a breach of trust in permitting the money to remain 
on bills payable to Donnithome alone, and in leaving the state of 
the funds unascertained for five years, (c) . . . The Master of 
the EoDs seems to have thought, that the only breach of trust was 
taking the bond ; that was a breach of trust ; but he says, and 
I think rightly, that i£ he had not found other grounds for dismiss- 
ing the bni, inquiry would have been necessary. I agiee with the 
Master of the Rolls, that inquiry might, on the principles of this 
Court, have discharged the trustees in given circumstances from 
breach of trust. If, without further participation, they, in 1795, 
had found that they, being implicated in no breach of trust tilt 
that time, had a co-trustee who had been guilty of a shameful 
violation of his duty, and immediately exerted themselves to obtain 
from him a mortgage, which was their object at that time, and 
used their utmost efforts, instead of filing a bill in this Court against 
him, which, perhaps, might have destroyed his means of gi^^ng 
security, I should have hesitated long before I charged them, 2" 
inquiry had satisfied me that for a simple contract debt due to them 
they had taken a bond and a mortgage, instead of instituting a 
suit, with the rational hope that by means of the bond and the 
mortgage they should obtain payment from their co-trustee ; in 
such circumstances, I should readily agree with the Master of the 
Rolls. But when they take no steps on the arrival of the period at 
which the bond becomes payable, and choose to communicate to 
the cestui que trust that they have taken a bond, but not what is 
the effect of it, that is not a communication which can entitle them, 
in this stage of the cause, to insist on circumstances of which, if 

(a) Page 65. (c) Page 71. 

(b) Page 67. 



Lee. VII.] trustee's liability. 203 

inquiry had been directed, they might possibly have availed them- 
selves for their protection." 

WTiere a trustee joins in signing a cheque, or does any other act 
to place money in the hands of his co-trustee, or a person Trustee 
employed by the trustees in a due course of business, for the joining in 
purpose of bemg applied in a due execution of the trust, such ^"^^ >nce°"" 
act being required for the purposes of convenience, and 
the money be lost, if no case of negligence in not making inquiry 
as to the proposed application of the money, or looking after the 
application of the money, be made against the tiustee(a), he will 
not be liable.(6) " It will be found to be the result of all the best 
authorities upon the subject," said Lord Cottenham(c), "that 
though a personal representative, acting strictly within the line of 
his duty, and exercising reasonable care and diligence, wiU not be 
responsible for the failure or depreciation of the fund in which any 
part of the estate may be invested, or for the insolvency or mis- 
conduct of any person who may have possessed it, yet if that line 
of duty be not strictly pursued, and any part of the property be 
invested by such personal representative in funds or upon securities 
not authorized, or be put within the control of persons who ought 
not to be intrusted with it, and a loss be thereby eventually 
sustained, such personal representative will be liable to make it 
good, however unexpected the result — however little likely to arise 
from the course adopted — and however free such conduct may have 
been from any improper motive. Thus, if he omit to sell property 
when it ought to be sold, and it be afterwards lost without any 
fault of his, he is liable(«^) ; or if he leave money due upon personal 
security, which, though good at the time, afterwards fails, (e) And 
the case is stronger if he be himself the author of the improper 
investment, as upon personal security, or an unauthorized fund. 
Thus, he is not liable, upon a proper investment in the 3 per cents, 
for loss occasioned by fluctuations of thatfund.(/) But he is for 
the fluctuations of any unauthorized fund.(5f) So, when the loss 
arises from the dishonesty or failure of any one to whom the posses- 
sion of part' of the estate has been entrusted. Necessity, which 
includes the regular course of business in administering the property, 
will, in equity, exonerate the peraonal representative. But if 
without such necessity he be instrumental in giving to the person 
failing possession of any part of the property, he will be liable, 

(o) Underwood v. Stevens, 1 Mer., 496; Be Brogden, 38 Ch. D. (C. A,), 

713 ; Hanbvry v. Kirlclaml, 3 Sim , 546. 

2So ; Brice v. Stokes, II Ves., 319; (d) Phillips v. Phillips, Freem. Ch. 

V. Foster, 6 Beav., 261. Ca , 11. 



(6) Bcuxm V. Bacon, 5 Ves., 331 ; (c) Powell v. Evans, 5 Ves., 839 ; 

Terrdl v. Matthews, II L. J., N. S., Tebis v. Carpenter, 1 Mac'rt , 280. 

Ch., 31; Broadhnrst v. Balguy, I Y. & (/) Peat v. Crane, 2 Dick., 499. 

C. C. C, 28. (g) Hanam t. Allen, 2 Diok., 498; 

(c) Glauyh V. Bmd, 3 My. & Or., Houx v. Earl of Dartmouth, 7 Ves., 137. 



204 executor's liability. [Lec. VII. 

althougt the person possessing it be a co-executor or co-adminis- 
trator."(a) 

Formerly it was considered that an executor joining in a 
Executor receipt for conformity made himself liable ; for there is no 

joining in necessity for him to do so, as the receipt of one executor is 

^Imiotmitv ^ sufficient discharge, whereas the receipt of one trustee is 
Indian " not. (6) But this rule has since been modified. In Walker 
Trusts Act, V. Symonds{c) Lord Eldon said : " Without going through 
^" ^°' all the cases, it is obvious that prima facie there is this dis- 

tinction between executors and trustees, that one executor can, and 
one trustee cannot, give a discharge : and it may frequently happen, 
as in Brice v. Stokes{d) it actually happened, not only that one trustee 
cannot give a discharge, but that the instrument of trust provides 
that there shall be no discharge without an act in which all the 
trustees join. Executors seem formerly to have been charged on 
much stricter principles, if they joined unnecessarily, though with- 
out taking control of the money ; that rule is now altered : whether 
the alteration is wholesome may be a question. It may be laid 
down now, as in Brice v. StoJces(e), that though one executor has 
joined in a receipt, yet whether he is liable shall depend on his 
acting. The former was a simple rule, that joining shall be con- 
sidered as acting ; but in the cases since the rule, that joining alone 
does not impose responsibility scarcely two Judges agree." And 
in Joy V. CampbeU{f ) Lord Redesdale said : " The distinction seems 
to be this, with respect to a mere signing, that if a receipt be given 
for the mere pxirpose of form, then the signing will not charge the 
person not receiving ; but if it be given mider circrmistances 
purporting that the money, though not actually received by both 
executors, was under the control of both, such a receipt shall charge ; 
and the true question in all these cases seems to have been, whether 
the money was under the control of both executors. If it was so 
considered by the person paying the money, then the joining in 
the receipt by the executor, who did not actually receive it, amount- 
ed to a direction to pay his co-executor ; for it could have no other 
meaning. He became responsible for the application of the money 
just as if he had received it." And in Doyle v. Blake{g) his Lordship 
said : " The true consideration in a question of this kind is, whether 
the executor who merely joins in the receipt had a control, and his 
joining in the receipt is evidence of that control, although the money 
was actually received by the other." The principles, therefore. 



(a) Langford v. Oascoyne, 11 Ves., Wh. and Tiidor, 3rA Ed., 820, where 
333 ; Lord Shipbrook v. Lord Hinchin- the earlier cases are collected. 
brook, 11 Ves., 252; Underwood v. (c) 3 Swaust., 63. 

Stevem, 1 Mer., 712; Hanbury v. Kirk- {d) 11 Ves, 319. 

land, 3 Sim., 265. (e) Ibid. 

(b) See Lewin, 12th Edn., 296; and (/) 1 Sch. & Lef., 341. 
the notes to Townley v. Sherborne, 2 {g) 2 Sch. & I^cf., 242. 



Lee. VII.] executor's liability. 205 

which govern the case of trustees joining for conformity, will 
apparently be applicable, and an executor will not be responsible 
for joining, so long as he acts subsequently in a proper manner. 
Thus an executor indorsing a bill of exchange(a), or joining in a 
sale of securities(6) in order to enable the co-executor to receive the 
money, will not be hable in the absence of negligence. 

Executors joining in a transfer to a co-executor upon his 
representation that the money is required for the payment _ 
of debts, must take care to ascertain that the money is must ascer- 
really required for that purpose, and will be hable for tain that 
neghgence if it turns out that it was not wanted, or for the nioney re- 
portion not apphed to that purpose, but not for any portion ^""^^ 
properly expended. The person to whom the representation is made, 
has imposed upon him at least ordinary and reasonable diUgence to 
inquire whether the representation is true.(c) In Lord Shipbrook 
V. Lord HinchinbrooJc(d), which was a case of this nature. Lord 
Eldon said : " This case depends upon the principle apphcable to 
trustees. The fund being vested in the names of ail the executors, 
it was necessary that all should join in the act which placed the 
property in the hands of one of them ; and my mind had reached 
this conclusion, that, as these executors could not be held answerable 
for the balance, for which their co-executor was to account sepa- 
rately, they had a right to contend, at least, that they should be 
allowed so much of the fund as had been apphed to the purpose 
to which it ought to have been apphed, as they might have been 

compelled so to apply it These executors ought at 

least to have made some inquiry of their co-executor as to what 
he had been doing in the administration. If, making that inquiry, 
they were misled, that is a distinct case ; but, making no inquiry, 
they are satisfied with the information which proves groundless, 
that he wants the money for the purpose of pajdng debts. They 
ought to have inquired how that could be ; and though it is not a 
consequence that they might not place the remainder of the pro- 
perty in his hands, it must surely be at their risk, if they were 
aware that he had been not acting according to his trust, but grossly 
violating it."(e) 

The rule that a trustee as such is not liable for a not^J^^tle 

breach of trust committed by his co-trustee, extends to as such fot 

co-executors. (/) But it is otherwise if he has concurred act of co- 
executor. 

(a) Howy v. Blakeman, 4 Ves., 608. 712 ; Bick v. Motley, 2 M. & K., 

(6) Chambers v. Minchin, 7 Ves., 312 ; Wiliiams v. Niaxm, 2 Beav., 472 • 

197. HeweU v. Foster, 6 Beav., 259 j Saiya 

(c) Lord Shipbrook r. Lord Hinchin- Kumar v. Satya Kripal, 10 C. L. J., 
brook, 11 Ves., 254; Underwood v. 503. 

Stevens, 1 Mer., 712; Hewett v. Foster, (/) Hargthorpe v. Milforth, Cro. 

6 Beav., 259. Eliz., S18; Riky y. Kemmis, 1 L. & G., 

(d) 16 Ves., 477. t ; Siigd.,122 ; CoUam v. E. C. B., I J. 

(e) Underwood v. Stevens, 1 Mer., & H, 243. 



206 executor's liability. [Lee. VII. 

in the mis-application of the fund, (a) In MucUow v. FuUer(h) 
a trustee, who as executor had proved the will, was held to 
be liable to make good a loss incurred by his allowing a debt 
from his co-executor to remain outstanding, although the will 
contained the usual indemnity-clause. In Booth v. Booth(c), a 
testator bequeathed his estate to his partner Booth and to one 
Batkin upon trust to invest it for the benefit of his wife and children. 
Both Booth and Batkin proved the will, and Booth retained the 
testator's moneys in the trade, and ultimately they were lost. 
Batkin took no active part in the trusts, but was cognizant of the 
breach of trust, and took no steps to prevent it. It was held, that 
he was responsible for the consequences of the breach of trust. 
" The two executors," said Lord Langdale, " proved the will ; they 
take on themselves the trust and the duty of performing it. From 
that moment it was their duty to do all that was necessary for the 
conversion of the estate into money, and to see the dividends duly 
applied ; but Batkin, unfortunately, did not consider that by 
proving the will he had undertaken any duty, or incurred any res- 
ponsibihty ; he says he proved the will in consequence of the request 
of the widow, who informed him that he would not thereby under- 
take any duty or be responsible for anything. It is important 
that it should be weU understood that no one can safely act in that 
manner, and that the law will not permit a party to neglect the 
duty which by proving the will he has undertaken. I am of opinion 
that he became liable for the performance of the trusts, and for 
any consequences arising from a breach of them. Part of the 
testator's property was engaged in trade ; that trade ought to have 
been put an end to, and the property invested. Batkin, it appears, 
went to the place of business from time to time, and it is, therefore, 
clear that he knew that what ought to have been done was not 
performed. He acquiesced, week by week, and year by year, in 
the breach of trust which his co-executor was committing. There 
is no corrupt motive — no receipt of money which he misapplied, to 
be attributed to him, but he undertook the performance of a duty 
which he did not perform. This is no small blame : a man cannot 
be allowed to neglect a duty which he has undertaken. He per- 
mitted his co-executor to carry on the trade, and consequently 
must be considered, in this Court, a party to this breach of duty. 
It is said, in extenuation, that he did this from the best motives ; 
he thought the brother of the testator was the proper person to 
carry on the business ; he thought there would be more profit 
made by this mode of dealing with the property, and that it was 



{a) Hovey v. Blalceman, 4 Ves., 596 ; Satya Kvmar v. Satya Kt'ipal, 10 C. 

Brice v. Stokes, 11 Ves., 319; Mahomed L. J., 503. 
Ahmed v. Pedro, 1 B. L. R., 691 ; Hugg (5) Jac, 198. 

V. Greenway ; Coryton, 97 ; Lakhmi (c) 1 Eeav., 125. 

Ghand v. Joy Kuvarboi, 29 Bom., 170 ; 



lee. VII.] executor's liability. 207 

more advantageous for the children. All this might have been 
very right to do, and to acquiesce in, if he had undertaken to make 
good any loss which might occur in the course of the experiment ; 
he could not, however, so act without incurring that responsibihty 
if a loss occurred. I am of opinion, on the authorities and on the 
■estabhshed rules of the Court, to which it is not necessary to 
refer, that a trustee who stands by and sees a breach of trust 
committed by his co-trustee, becomes responsible for that breach 
•oi trust." 

The authorities on the question of the liability of an executor 
who allows his co-executor to retain the assets of the testa- 
tor's estate were discussed in the case of Styles v. Guy{a) by Q^ '^^ ^' 
Lord Cottenham. His Lordship, after referring to various 
cases, said : "In the reported cases, the loss appears to have been 
of property received by the defaulting executor after the testator's 
death, and not of a debt due from him before that event ; but this 
cannot furnish any distinction against the co-executor : in the 
latter case, a debt due from an executor constitutes part of the 
assets ; but over which the co-executor could not have had any 
control ; whereas he had the means of watching, and, if necessary, 
of intefering with the receipt by the defaulting executor of assets 
after the death. His being passive cannot be an immimity for him 
in the case of assets received and not in the case of a debt retained ; 
but how was this immunity consistent with the admitted liability 
of all executors for losses from neghgence, and inactivity in not 
calling in debts due to the estate ? Could passiveness be a protec- 
tion in the case of property lost in the hands of a co-executor, but 
an offence in the case of property lost in the hands of other debtors 
to the estates ? The liability in the latter case arises from the 
soundest principle. If a person named executor does not choose 
to accept the office, he has only to renounce, or, at least, to abstain 
from proving ; but if he proves, he thereby accepts the office, and 
becomes bound to perform the duties of it, and is liable for the 
consequences of his neglecting to perform them. Of these duties 
a principal one is to call in and collect such parts of the estate as are 
not in a proper state of investment. If he knows, or has the means 
-of knowing, that part of the estate is not in a proper state of in- 
vestment, but is held upon personal security only, and not neces- 
sarily so for the purposes of the mil, is it not part of the duty he 
has undertaken, to interfere and to take measures, if necessarv, for 
putting such property in a proper state of investment ; or is" it no 
part of his duty because the property is in the hands of a co- 



(a) Mac. & G., 422 ; see Egbert v. 1 Ch. (C. A.), 470 ; Satya Kumar v. 
Bumr, 21 Beav., 560; Candler v. Tittet, Satya Krqal, 10 -C. L. J., 503, 
22 Beav., 257; Me Gasguoine (1894), 



208 executor's liability. [Lee. VIL- 

executor, and not of any strangei to the estate ? It is impossible 
to find any principle for such a distinction. . . . There cannot 
be one rule applicable to a portion of the estate given to the executor 
upon particular trusts, and another rule apphcable to another 
portion of the estate constituting the residue given to the executor 
for the general purposes of the will. In both cases, the executors 
are trustees of the funds they are to administer for the purposes, 
specified, and their responsibility with respect to each of such 
funds must be the same. . . . From what I have already said, 
it will have been seen that I approve of the principle of the decisions 
in Mucklow v. Fuller{a), Booth v. Booth(b), and Lincoln v. Wright(c), 
and that I cannot discover any principle for distinguishing between 
losses by not calling in debts due from debtors to the estate or 
balances due from executors. These cases establish, that it is the 
duty of all executors to watch over, and, if necessary, to correct the 
conduct of each other, and the moment that is established, all 
ground of distinction between the two classes of cases ceases. 
Finding, therefore, a principle adopted and acted upon for many 
years and in many decisions, of the justice and grounds of which. 
I fully approve, I cannot feel any disposition to shake its authority, 
because I cannot reconcile it with dicta and doctrines of a much 
earlier date respecting the security of an executor who is passive. 
I have discussed this case much more at large than any di£B.culty 
would seem to warrant, because I thought it material to draw the 
attention of those who may hold the office of executors, to the 
doctrine that they cannot safely rely upon what they may find in 
the earlier cases, laying it down that a devastavit by one of two 
executors shall not charge his companion, provided he has not 
intentionally or otherwise contributed to it. The later authorities 
to which I have referred must show them that passiveness will, 
in many cases, furnish no protection ; but that negligence and 
inattention in not interfering with, and taking proper measures to 
prevent or correct the improper conduct of their co-executor, may 
subject them to responsibilities from which the language of the 
earlier cases might lead them to suppose they were exempt. The 
co-executors appear, in this case, to be free from any moral 
blame ; they derived no benefit, but have suffered much from 
the breach of trust of their co-executor ; but they knew that 
part of the testator's property remained in his hands, and 
that it was, therefore, not in a proper state of investment : 
they knew, therefore, that a breach of trust by him was actually 
in operation, and, excepting some unprofitable appKcations for 
accounts and a settlement, nothing was done by them to secure 
this property so known by them to be in peril." 



(a) Jao., 19a (c) i Beav., 427. 

(6) 1 Beav., 125. 



Lee, VII.] LIABILITY OF CO-EXECUTOR. 209 

Under a decree against executors for the common accounts, 
each is chargeable only with his actual or constructive . . , .... 
receipts, and, therefore, in such a suit an executor will under 
escape liability by showing, either that he has been only decree for 
passive, or that he has only acted so far as it was necessary coni™"" 
to enable his co-executor to administer the estate ; but it 
is otherwise where he is sought to be made liable for wilful 
neglect and default.(o) 

The principle by which an executor is made liable if he joins 
with his co-executor in a receipt, is applicable when he has unneces- 
received any portion of the testator's assets and voluntarily sarily 
and unnecessarily hands it over to his co-executor. (6) So handing 
the executor is Uable if he sanctions the property remaining "'^^'^ assets, 
in the hands of his co-executor(c), or does any act by which the co- 
executor gets absolute possession of the assets, and which but for 
that act he could not have obtained possession of, such as handing 
over securities(d), drawing or endorsing a bill of exchange, (e) 

"When it was unnecessary that he should do so, the payment 
over in order to charge must be unnecessary. Under certain 
circumstances, it may be necessary that one executor should pay 
over money to his co-executors, and in such a case no liability will 
attach ; as for instance, if the payment is made to enable the 
executor who receives the money to discharge debts payable where 
he resides(/), or to carry on a trade(g^), or where the executor has 
no legal right to retain the money. (A) So, the indorsing a bill of 
exchange made payable to two agents who, on the death of the 
principal, became his executors in order to enable one to receive the 
money, was held not to charge the one who did not receive, (i) If 
by agreement between the executors one is appointed to receive and 
intermeddle with such a part of the estate and another with such a 
part, each of them will be chargeable for the whole, because the 
receipts of each are pursuant to the agreement made betwixt both, (ji) 



(a) TerreU v. MaOiews, 1 Mac. & 6., ( / ) Bacon t. Bacon, 5 Ve3., 331 ; 

433. Joy V. Campbell, 2 Soh. & Lef., 341 ; 

(6) Townsend v. Barber, 1 Dick, 356 ; Ee Speigh, 9 App. Cas., 1 ; Learoyd v. 

Langford v. Oascoyne, 11 Ves., 333 ; Whiteley, 12 App. Cas., 734 ; Re Weall, 

Clough V. Dixcm, 3 M. & C, 497 ; dee 42 Ch. D., 678; Blyth t. Fladgate (1891), 

also Mahomed v. Pedro, 7 B. L. R., 691 ; 1 Ch., 337 ; Robinaon v. Harkin (1896), 

Satya Kumar v. Salya Kripal, 10 C. L. 2 Ch., 415. 

J., 503 ; Lahhmi Chand v. Joy Kuvarboi, {g) Toplis v. HurreR, 19 Beav., 423 ; 

29 Bom., 170. Home v. Pringle, 8 C. & F., 288. 

(c) Doyle v. Blahe, 2 Sch. & Lef., 231 ; (h) Davis v. Sparling, 1 R. & My., 64. 
Lees V. Sanderson, 4 Sim., 28 ; Styles v. (i) Honey t. Blakeman, 4 . Ves., 608. 
Gv,y, 1 Mac. & G., 422. ( j) OiU v. The Attorney-General, 

(d) Candler v. TiUett, 22 Beav., 257. Hard., 314 ; Moses v. Levi, 3 Y. & C. 
\e) SadUrv.Hobbs, 2 Bio. G.C., 114; Ex., 359; Lewis v. Nobbs, 8 Ch. D., 

Hovey v. Elaleeman, 4 Ves., 608, 591, 

AL, T II 



210 LIMITATION OF LIABILITY. [LCC. VII. 

An executor is not liable for any portion of the fund which has been 
properly applied, (a) 

If a trustee becomes aware that his co-trustee threatens, or 
„ . intends to commit a breach of trust, it is his duty to take 

ing intended steps to prevent it, and, if necessary, to apply for an 
breach of injunction under s. 54 of the Specific ReUef Act, I of 1877.(6) 

*™^*- If a breach of trust has been committed, the trustee should 

institute proceedings against the co-trustee to compel him to restore 

the property to its proper condition, (c) 

If a trustee conceals a breach of trust(«i), or refrains from 
taking proceedings(e), he will be hable for loss. 

There is no primary Uability in respect of a breach of trust (/), 
all parties to it being equally liable for the whole of the 
buiry af '^' ^°^ occasioned by the wrongful act or default, and it is no 
co-trustees. objection to a suit brought by parties seeking relief against 
Indian Trusts g^ breach of trust, that one of the defendants against whom 
Act., s. 27. ^^ relief is prayed, may have been a party to such breach of 
trust, (gf) 

If, however, it appears that one trustee took a more active 
part in the breach of trust, the loss as between the trustees may 
be thrown upon the more guilty party, who, or if he be dead, his 
estate, may be ordered to indemnify the passive trustee. (A) 

The joint hability of trustees may be taken away by express 

, contract, as where it is agreed each trustee shall receive, 

^n"'*bil°t" ^""^ ^^^ ^ answerable for a certain proportion of the 

trust-estate, in such a case the trustees will only be liable 

for the amount in their own custody, (t) 

Where several trustees are involved in one common breach 
of trust, a cestui que trust, suffering from that breach and proving 
that the transaction was neither authorized nor adopted by him, 



(a) Lord Shipbrook v. Lord Hirtchin- (/) The fact that one trustee 

brook, 16 Ves., 447 ; Underwood v. derived an indirect benefit makes no 

Stevens, 1 Mej-., 712; Brice v. Stokes, difference; Butler v. B-utler, 5 Ch. D., 

11 Ves., 328; HeweU v. Foster, 6 Beav., 554; 7 Ch. D. (C. A.), 116; Chilling- 

259. worth v. Chambers (1896), 1 Ch. (C. A.), 

(6) See also In re Chertsey Market, 685. 

6 Rice, 279; Mahmood v. Bodrigwes, (g) WUson v. Moore, 1 M. & K., 17 ; 

7 Bom. L. R., 691. afEd. on appeal, ib., 337 ; Jenkins v. 

(c) Franco v. Franm, 3 Ves., 75; Robertson, 1 Eq. Eep., 123; Blylh v. 
Earl Powlet v. Herbert, 1 Ves. J., 297. Fladgate (1891), 1 Ch., 337. 

(d) Boardman v. Mosman, 1 Bro. (h) Lockhart v. Meily, I DeG. & J., 
C. C, 08. 476; Priestman v. Tindall, 24 Bear., 

(e) Brice v. Stokes, 11 Ves., 319; 244; Butler v. Butler, L. E., 5 Cli, Div., 
Walker v. Syrmmds, 3 Sw., 41 ; Booth 554. 

T. Booth, 1 Beav., 125; Williams \. {i) Bids v. Betty, 6 'Mgidd.,m. 
Niaxm, 2 Beav., 472. 



Lee. VII.] CONTRIBUTION. 211 

may proceed against either or all of the trustees, (a) In the case 
of a judgment for a specified sum for a breach of trust, the accept- 
ance of a payment from one trustee as a compromise, does not 
operate as a release fro tanto of the other trustees. (6) 

Should there be no distinction between the gxiilt of the trustees, 
And one of them has been compelled to bear the whole, or a contribution 
greater portion of the loss, he may institute a suit for Indian 
contribution against his co-trustees. (c) In such a suit the Trusts Act, 
Court treats co-trustees as co-trustees and until the extent ^" ^'' 
of their liabihty is ascertained(d) limitation does not begin to run.(c) 
If any of the cestuis que trustent have participated in the breach 
of trust, they must be made parties.(/) A separate suit must be 
instituted; contribution cannot be enforced in a suit against the 
trustee to make good the breach of trust, (^i) Where a decree had 
been passed against several defendants with costs, which had been 
paid by one of the defendants, the Court, on consent, decreed contri- 
bution in respect of the costs. (A) If, however, the trustees have acted 
fraudulently, the Court will not interfere to enforce contribution, 
upon the principle that there can be no contribution between wrong- 
doers upon entire damages for a tort.(i) Where there are three 
trustees and the management of the business has been left solely 
to one of them, the other two are equally imiocent, but the breach 
of trust being imputable to both, they are in pari delicto and as 
between them no suit will lie.(y) 

If there is any fund in Court in the suit, which is payable to 
the trustee against whom contribution is sought, the Coiurt; 
will impound the fund in order to make good what is due Impounding 
from him. Thus, if a fund in Court is set apart to pay court" 
legacy bequeathed to one of two defaulting trustees \^ho 



(o) Walker v. Symonds, 3 Swaust., also Butkr v. Butler, 14 Ch. D., 329. 

75 ; AUormy-Oeneral v. Wilscm, 1 C. & (e) Eobirtson v. Harkin (1896), 2 

Ph., 28; Fletcher v. Green, 33 Beav., Ch., 415; applying Dering v. Earl of 

426; Ex parte N orris, Z.. R., 4Ch., 280. Winchelsea, 1 Cox., 318; and Wolmer- 

(6) Edwards v. Hood Barss (1905), shansen v. (Mlick (1893), 2 Ch., 514. 

1 Ch., 20. He can prove for the ftdl (/) Jesse y. Bennett, 6 D. M. G., 609. 

amount in the bankruptcy of another (g) Fletcher v. Green, 33 Bear., 513. 

trustee. See also Se Davison, 13 Q. B. (fe) Pitt v. Bonner, 1 Y. & C. C. C, 

D., 50. 670. 

(c) Birks v. Micklethwait, 33 Beav., (i) Lingard v. Bromley, 1 V. & B., 
409; Wilson v. Goodman, 4 Hare, 63; 114; Tarleton v. Hornby, 1 Y. & C. 
Jesse V. BemneU, 6 D. M. G., 609; Ex., 336; AUommi-Gmeral v. WiUon, 
Fletcher v. Green, 33 Beav., 513 ; 7 Cr. & Ph.,28 ; Supta Singh v. Imrit 
Attorney-General v. Dangars, ib., 624 ; Tewari, 5 Cal., 720 ; see also Lakshmana 

(d) Ramskill v. Edwards, 31 Ch. D., v. Eangasami, 17 Mad., 78 ; Brqjendro 
101 ; Wynne v. Tempest (1897), 1 Ch., v. Rashbehari, 13 Cal., 300 ; Fakir v. 
110. In Sawyer v. Sawyer, 28 Ch. D. Tasadduq, 19 All., 462. 

-(C. A.), 595 an inquiry was directed into {j ) Banga Pa.i ■"- Tlaba,, 20 Mad., 

the extent of the several liability; see 398. 



212 PAYMENT TO CESTUI QUE TRUST. [LCC. VII. 

has paid no part of the balance due from him, ijie other trustee who 
has paid the whole is entitled to ask the Court to impound the fund, 
in order to make good the share of the debt which the person who 
was both trustee and legatee ought to have paid, (a) 

Where several defendants are involved in a breach of trust, 

the Court, in decreeing relief in respect of it, decrees the 

''°^*^' costs of the suit against them all, on the principle of 

giving the plaintifE the greater security for the payment, and 

without regard to the relative degrees of culpability in the 

defendants.(6) 

A cestui que trust is often abroad, and then the trustee cannot 
be sure, that at the time of payment under a power-of- 
paying^ attorney the cestui que trust is aUve ; and if he were dead, 

under the power-of-attomey would be at an end. If, however, the 

power-of- cestui que trust give to the trustee a written direction by 
attorney. deed, or otherwise, to pay money to a particular person, any 

payment made under such written direction, until it be revoked, and 
the revocation comes to the knowledge of the trustee, would be 
binding on the cestui que trust's executor, (c) A convenient course, 
in cases of this kind, is to transmit the money to a bank abroad, 
making it payable to the order of the cestui que trust ; but where 
the cestui que trust is imable to receive his money in person, his 
direction should be obtained before any particular mode of remit- 
tance is adopted. («i) In cases to which English law is apphcable, 
"no trustee, executor, or administrator making any payment, or 
doing any act hand fide, imder or in piusuance of any power-of- 
attomey, shall be Uable for the money so paid, or the act so done, 
by reason that the person who gave the power-of-attorney was dead 
at the time of such payment or act, or had done some act to avoid the 
power : Provided that the faCt of the death, or of the doing of such 
act as last aforesaid, at the time of such payment or act bond fide 
done as aforesaid by such trustee, executor, or administrator, was 
not known to him : ProAdded always that nothing herein contained 
shall in any manner afEect or prejudice the right of any person 
entitled to the money against the person to whom such payment 
shall have been made ; but that such person so entitled shall have 
the same remedy against such person to whom such payment shall 
be made, as he would have had against the trustee, executor, or 
administrator, if the money had riot been paid away under such 
power-of-attomey. "(e) 



(o) Birks v. Miclclethioait, 33 Bcav., v. Ashe, 2 DeG. & Sm., 436 ; Kiddill 

409. V. FameU, 3 Sm. & Giff., 428. 

(&) Lawrence v. Bowie, 3 Phill., (d) Lewin, 12th Edn., 411. 

140. (e) Trustee's and Mortagee's Powers 

(c) Lewin, I2th Edn., 411, citing Act (XXVni of 1866), ». 39. 
Vance v. Vance, 1 Beav., 605 ; Harrison 



Lee. VII.] INDEMNITY-CLAUSE. 213 

" When any beneficiary's interest in the trust-property becomes 
vested in another person, and the trustee, not having notice 
of the vesting, pays or delivers trust-property to the person ^jyiout 
who would have been entitled thereto in the absence of such notice of 
vesting, the trustee is not liable for the property so paid *r^°^*^^' 
or deUvered." For instance, if a cestui que trust m.oii,gage8 y^rt'^slzS, ^ 
his reversionary interest in a trust-fund, the trustee should 
be informed of the charge by the mortgagee, and if he is not 
informed, and the trustee remains without notice of the charge and 
pays over the sum charged to the cestui que trust, the trustee will 
not be liable to the mortgagee, (a) 

Formerly an instrument of trust drawn according to the English 
form, whether a will or a deed, usually contained a clause 
declaring that one trustee should not be answerable for the clause." 
receipts, acts, or defaults of his co-trustee. But the proviso, 
while it informed the trustee of the general doctrines of the Court, 
added nothing to his security against the Uabilities of his office.(&) 
A Court of Equity infuses such a clause into every instrument 
oreating a trust; it comes, therefore, to little more than what a 
Court of Equity will do without any direction(c) ; and a person 
can have no better right upon the expression of what would, if not 
expressed, be imphed.^c?) 

Such a clause protects a trustee from liability for losses, and 
throws the onus of proof on the party seeking to charge the trustee, 
only in cases where his acts have been justifiable. If he invests 
in a security authorized by the instrument of trust, and the security 
fails, he will not be liable, (e) But where there is a clear breach 
of duty in the employment and supervision of the agency, the 
trustee is not protected. (/) 

In Bone v. Cooh(g) a testator bequeathed certain property 
to B and C, and directed them to sell it and invest the proceeds for 
the benefit of D. B and C sold the property, and the purchase- 
money was received by B and retained in Ms hands. After the 
expiration of two years, C called upon B to niake the investment. 
He was imable to do so, became insolvent, and the money was lost. 
C was held hable, although there was a provision in the instrument 
creating the trust that the trustees should not be answerable for 
any trust-moneys further than each person for what he should 
actually receive. 

(a) See JonesM. Gibbons, 1 Yea., iVi ; (d)Wmrall v. Harford, 8 Ves., 8. 

Fortescue v. Bamett, 3 M. & K., 36 ; (e) Rehden v. Wesley, 29 Beav., 

Taylor v. London and County Bankivg 213. 

do. (1901), 2 Ch. (G. A.), 231. See (/)-?» re Brier, 26 Ch. D., 238; 

also Re Bichards, 45 Ch. D., 589. Lakhmi Chand v. Jai Kuvailiil, 29 

(6) Lewin, 12th Edn., 304. Bam., 170. 

(e Dawson v. Clarke, 18 Ves., 254. (s) M'Clel., 168. 



214 INDEMNITY-CLAUSE. [LCC. VII. 

In order to exempt a trustee from Kability for a breach of trust 
in respect of any of the acts to which I have referred, by force of 
an express declaration in the instrument of trust, the declaration 
must be of the very strongest kind ; and no declaration, however 
strong, can exempt a trustee from Uability if he has been guilty of 
gross misconduct. In WilMns v. Hogg{a), a suit against two or 
three trustees, to make good trust-moneys, etc., they had allowed 
their co-trustee to receive, was dismissed with costs, the instrument 
creating the trust having, besides the usual indemnity-clause, 
provided "that any trustee who should pay to his co-trustee, or 
enable him to receive moneys for the general purposes of the will, 
shall not be obliged to see to the due application thereof, or be 
responsible by express or impUed notice of the misapplication." 

Accordingly the Indian Trasts Act enacts that " Subject to the 

provisions of the instrument of trust and of sections 23 

Indian Trusts ^^^ 26^ trustees shall be respectively chargeable only for 

"^ ' ^' " such moneys, stocks, funds and securities as they respectively 

actually receive, and shall not be answerable the one for the other 

of them, nor for any banker, broker or other person in whose hands- 

any trust-property may be placed, nor for the insufficiency or 

deficiency of any stocks, funds or securities, nor otherwise for 

involuntary losses." (6) 

(a) 3 Giff., 116; Pass v. Dundas,29 (6) See also Trustee's and Mortgagee'* 

W. R., 332. Powers Act (XXVIII of 1866), s. 37. 



LECTURE VIII. 

RIGHTS AND POWERS OF TRUSTEES. 

Custody of title-deeds — Right of trustee to reimbursement : Indian Trusts Act, 
s. 32 — Costs — Expenses of management • — ■ Accounts — Advances by 
trustee — Wrongful act of agent — Repairs — Lien for expenses — Agents 
have no hen — Interest on advances — Advances in respect of different 
trusts — Personal liability of cestui que trust to reimburse — Indemnity 

— Suit to recover advances — Public funds — Indemnity from gainer by 
breach of trust : Indian Trusts Act, s. 33 — Suit to administer trusts — 
Appeal — Costs — Application to Court for opinion in management of trust- 
property : Indian Trusts Act, s. 34 — Right to settlement of accounts : Indian 
Trusts Act, s. 35 — General authority of trustee : Indian Trusts Act, s. 36 — 
Advice of cestui que trust — What acts trustee may do — Repairs — Winding 
up estate — Maintenance — Compounding or releasing debts — How trust 
property may be sold : Indian Trusts Act, s. 37 — Indian Trusts Act, s. 38 — 
Conditions of sale — Buying in — Power to convey : Indian Trusts Act, b. 39 

— Power to vary investment : Indian Trusts Act, o. 40 — ■ Power to apply 
property for maintenance: Indian Trusts Act, ». 41 — Minors' Act — 
liability of purchaser to see to application of purchase-money — Conveyance 
of Iiand Act — Power to give receipts : Indian Trusts Act, s. 42 — To 
whom purchase-money payable — Charge of debts — Notice of breach of 
trust — Suspension of trustee's powers after decree ; Indian Trusts Act, 
s. 45. 

The trustees are entitled to have the custody of the instrument 
creating the trust, and of all muniments of title relating to r t d oi 
the trust-estate, and it will be a breach of their duty if, title-deeds, 
where there is a trust to perform, they willingly suffer the Indian 
title-deeds or muniments relating to the trust-property to get Trusts Act, 
out of their possession (a), it being, as we have seen(6), their ^' ^'' 
duty to maintain and defend all suits necessary for the protection 
and preservation of the trust-property, as for instance, to sue tenants 
for rent, and for this purpose they must have the documents relating 
to the trust, (c) Moreover, if a cestui que trust for life were allowed 
to have the custody of the title-deeds, he might mortgage or convey 
the trust-property for valuable consideration without notice, and 
the interests of remaindermen would be injured. In such a case 
the trustees might, if it appeared that they acted fi'audulently or 
with gross neghgence, be made personally responsible not only to 
the other cestuis que trustent, but to third parties, (d) It being the 
right of the trustees to have possession of the title-deeds, they may 

(a) Meuz v. Bell, 1 Hare, 95. ■Stanford v. Roberts, L. R., 6 Ch., 310. 

(5) Ante, p. 141. (d) Evans v. BickneU, 6 Ves., 174; 

(c) Qoode V. Burton, 11 Jur., 851; Kingdonv. Casaeman,25W.'R.,3i5. See 

Qarner v. Hannyngton, 22 Beav., 627 ; also Walker v. LAnom (1907), 2 Ch., 104. 



216 BEIMBDBSEMENT OF TBUSTEKS. [LBC. VIII. 

sue to have them delivered up.(a) Trustees are bound to produce 
all cases and opinions of counsel, not intended for their own defence, 
to the cestui qtce trust.{b) Securities payable to bearer must be 
deposited with a banker, with directions to the banker that the box 
in which they are placed should not be removed without the author- 
ity of all the trustees, (c) They cannot be left with a solicitor((i) 
or with only one of the trustees(e), luiless he is a stockbroker for 
the purpose of their realisation. (/) Title-deeds stand on a different 
footing from securities. They are often left with a solicitor, for 
instance, when the estate is realised or when the trust is in course 
of development as a building estate, (g^) 

_. . . g "Every trustee may reimburse himself, or pay or 

imbursement discharge out of the trust-property, all expenses properly 

of expenses. incurred in or about the execution of the trust, or the 

Indian Trusts realization, preservation or benefit of the trust-property, or 

' ^ the protection or support of the beneficiary. 

If he pays such expenses out of his own pocket, he has a first 
charge upon the trust-property for such expenses and interest 
thereon ; but such charge (unless the expenses have been incurred 
with the sanction of a principal Civil Court of original jurisdiction) 
shall be enforced only by prohibiting any disposition of the trust- 
property without previous payment of such expenses and interest. 

If the trust-property fail, the trustee is entitled to recover from 
the beneficiary personally on M^hose behalf he acted, and at whose 
request, express or impHed, he made the payment, the amount 
of such expenses." 

A. trustee, as we shall see hereafter, has no right, in the absence 
Right of °^ express stipulation, to charge anj^thing for the trouble 

trustee to he incurs in the management of the trust. But he is entitled 

reimburse- to be reimbursed for expenses out of pocket(^), such as the 
'"^"*' expenses caused by the employment of a bai]iff(i), an agent 

to collect rents(j'), or book-debts(^), and of a legal adviser.(i!) So 



(o) SmUh V. Waiis. Tay., 159 ; see {h) In re Ormsby, 1 B. & B., 191 ; 

also Lewin, 12th Edn., 873. Hid/e v. Haywood, 2 Atk., 126 ; Godjrey 

(b) Wynne-v. Hwmherston, 27 Beav., v. Watson, 3 Atk., 578; Feoffees of 
421. Heriot's Hospital v. Boss, 12 C. &F., 

(c) Se De Pothonier, Dent v. De 512. 

Potlumier (1900), 2 Ch., 529. Non- («') Bonithron v. Hochmore, 1 Vem., 

negotiable securities need not be in the 316 ; Chambers v. Qoldwin, 9 Ves., 273. 

custody of all; Be Sission (WHi), 1 Ch., {}) Godfrey y. Watson, 3 Atk., 518; 

262. Davis v. Dendy, 3 Madd., 170; Stewart 

(d) Field v. Field (1894), 1 Ch., 425. v. Hoare, 2 Bro. C. C, 633 ; Wilkinson 

(e) Lewis v. Nobbs, 8 Ch. D., 591 ; v. Wiikinson, 2 S. & S., 237 ; Be West- 
Chandler V. TilH, 22 Beav., 257. brooke, 2 Phillips, 631. 

{f) Be Gasquoine, Gasquoine v. (k) Be Brier, 26 Oh. D. (C. A.), 238. 

Gasquoine (1894), 1 Ch., 470. (0 Macnamara v. Jones, Dick, 587; 

(?) FiOd V. Field (1894), 1 Ch., 425. Blackford v. Davis, L. R., 4 Ch., 304. 



Lee. VIII.] COSTS. 217 

he may be reimbursed for fees to couiisel(o) and travelling 
€xpenses(6) if properly incurred.{c) And it is not necessary that 
the instrument creating the trust should contain an express provision 
allowing the trustees to charge. («i) 

" The first principle of law," said Lord Cottenham(e), " is of 
course to reimburse the trustees all expenses properly incurred by 
them in discharge of the duties of the trust." "It is," said Lord 
Bldon, " in the nature of the ofi&ce of a trustee, whether expressed 
in the instrument of trust or not, that the trust-property shall 
reimburse him all the charges and expenses incurred in the execu- 
tion of the trust."(/) The expenditure must have been necessary, 
or must have been incurred at the request of the cestui que trust.{g) 
Trustees of a void deed, however, cannot charge costs and expenses 
incurred by them as against the persons who get the deed set aside (A), 
though they will be allowed for improvements. (*) If the trustees 
have been guilty of fraud, they will not be allowed their expenses, 
even if there is a direction in the instrument of trust directing 
allowances for expenses.(^') Where trustees were wrongfully 
appointed, but acted hond fide, and beUeved themselves to have been 
duly appointed, they were allowed their costs, charges, and 
expenses, notwithstanding the defect of title.(i) But where 
a settlement was set aside only in part or on the ground of improvi- 
dence, and the trustees acted properly, a reimbursement was 
allowed. (Z) A trustee who has obtained his costs as between 
party and party in a suit respecting the trust-fund, will be entitled 
to charges and expenses reasonably and properly incurred which 
would not be allowed on taxation, (m) The fact that a trustee has 
been unsuccessful in litigation, either as plaintiff or defendant, will 



(a) Gary, 14; Poole v. Pass, 1 Beav., Anderson, 11 Hare., 301; see also 

600. Hosegood r. Pedlar, 66 L. J. Q. B., 18 ; 

(6) Ex parte Loxeyrove, 3 D. & C , Ecclesiastical Commissioners v. Pinney 

763; Ex parte Elsee, 1 Mont., 1; Ex (1900), 2 Oh. (C. A.), 736. 

parte Bray, 1 Rose, 144. (h) Smith v. Dresser, L. B., 1 Eq., 

(c) Malcolm v. O'Callaghan, 3 M. 651. Ex parte Mussel, 19 Ch. D. (C. A.), 
& Cr., 62; Bridge v. Brown, 2 Y. & C, 588; DvMon v. Thompson, 23 Ch. D. 
C. C, 181. (C. A.), 278. 

(d) Attorney-General t. The Mayor {i) Lewiu, 12th Edn., 795, citing 
of Norwich, 2 M. & Cr., 424; Worral v. Woods v. Axton, 1866 W. N., 207. 
Harford, 8 Ves., 8; Dawson v. Clarke, (j) Hide v. Haywood, 2 Atk., 126; 
18 Ves., 254. Caffrey v. Darby, 6 Ves., 497. 

(«) Feoffees of Heriofs Hospital v. (fe) Lewin, 12th Edn., 787, citing 

Boss, 12 C. & F., 512. Travis v. lUingworth, W. N., 1868, p. 

(/) Worrall v. Harford, 8 Ves., 8; 206. 

see Morrison v. Morrison, 7 D. M. G., (1) Merry v. Pownall (1898), 1 Ch., 

214. 306; Everith v. Everitt, 10 Eq., 405. 

(g) Gollinson v. Lister, 20 Beav., See also Re Holder, 20 Q. B. D., 43 ; 

•368 ; Leedham v. Chawner, 4 K. & J., and Be Carter and Kenderdine (1897) 

458 ; Aga Md. Shirazi v. Syed Md. 1 Ch. (C. A.), 776. 

Shoostry, 21 C. W. N., 339. Costs of (m) Eeams v. Ymmg, 10 Ves., 184; 

lega,! advice incurred out of excess of Amarvd v. Bradboume, 2 Ch. Cas., 138 ; 

■caution are not allowed. Warier v. Ramsdm v. Langley, 2 Vem., 536. 



218 EXPENSE OP MANAGEMENT. [LeC. VIII. 

not, in the absence of misconduct, disentitle him to be reimbursed 
his costs, (a) And a trustee or executor, who is ordered to pay 
costs to the plaintiff, is entitled, unless he has forfeited his right by 
some misconduct, to recover from the estate which he has defended, 
not only the costs which he has incurred to the adversary, but alsa 
the costs which he has paid to his own legal adviser.(6) He will 
not be allowed interest on costs paid by him.(c) If a suit respecting 
the trust-fund has been caused by the negligence of the trustees, 
and d fortiori through their misconduct, or has been instituted in 
the face of proper advice(a!), they will not be entitled to costs, (e) 

A trustee or executor is not entitled to be allowed without 
question the amount of bills of costs which he has paid iond fide to 
the legal adviser to the trust, but such bills may be modified by 
the Court.(/). 

Where two executors, defendants in a suit, gave a joint retainer 
to a firm of solicitors, and in the course of proceedings it was certified 
that one executor, who had since died insolvent, was indebted to 
the testator's estate, — it was held that the surviving executor 
should be allowed only his own proportion of the costs up to the 
bankruptcy out of the estate, the defaulter's proportion being set 
off against the debt due from him, but that the costs incurred by 
both subsequently to the bankruptcy should be allowed in full. 

Where, in a suit to set aside a compromise made on behalf of 
infants by trustees, personal fraud was charged against one of the 
tnistees, and the suit was dismissed with costs to be paid by the 
next friend, who could not pay, the trustee was held to be entitled 
to be paid his costs out of the estate, as he had defended the suit 
for the benefit of the estate, though at the same time he had defended 
his own character, (^f) 

Expenses -^ trustee will be allowed to reimburse himself for 

of manage- necessary expenses inciirred in the management of the trust- 
ment. estate(A); even though the instrument of trust provides a 

(o) Lewin, 12th Edn., 790, citing (?) Smith v. DaU, 18 Ch. 1)., 516 

Courtney v. Sumley, 6 I. R., Eq., 99. Watmi v. Row, 18 L. R. Eq., 680 

(6) Lovat V. Fraser, L. R., 1 Sc. App., (dissented from) ; M'Eu-an v. Crombie, 

37. 25 Ch. D., 175. 

(c) Qordcm v. Traill, 8 Price, 416. (?) WaUem v. Woodbridge, L. R., 

(d) Peers v. Ceeley, 15 Beav., 209. 7 Oh. Div., 504. But see Hosegood v. 

(e) Caffrey v. Darby, 6 Ves., 497 ; Pedler, 66 L. J. Q. B., 18 (where the 
see Leedham, v. Chavmer, 4 K. & J., defence was not in the trustee's strict 
458 ; Aga Md. Shirazi v. Syed Md. line of duty to the beneficiary) ; Se 
S!wostry, 21 C.MV.N^SSQ. Dunn (1904), 1 Ch., 648; also Se 

(/) Johnson v. Tdjord, 3 Riiss., Llewellin, 37 Ch. D., 317; Ee Beddoe 

477 ; Atten v. Jarvis, L. R., 4 Ch., 616; (1893), 1 Ch. (C. A.), 547. 

Broum v. Burdetl, 40 Ch. D. (C. A),. (h) Webb v. Earl of Shaftesbury, 7 

244; Ee Skowley (1897), 1 Ch. (C. A.), Ves., 480. See James v. May, 6 H. L., 

741. As to taxation, see Lewin, 12th 328 (dividends on shares); Birks v. 

Edn,, 790. Mvch^wait, 34 L. J. Ch., 364 (costs 



Lee. VIIL] EXPENSES OF MANAGEMENT. 219 

remuneration for trouble. Thus, where a testator, who gave 
annuities to his trustees as a recompense for their care and trouble in 
the execution of the will, died possessed of a nmnber of houses let 
at weeldy rents, the trustees were held to be entitled to employ an 
agent to collect the rents and to pay >iim out of the trust-funds. (a) 
But where the annuities were expressly given to trustees for their 
services and collecting of rents, they cannot claim the annuities in 
addition to a commission of greater amount allowed to a rent- 
collector. (6) The trustee should keep a regular account of . 
the expenses incurred. If he does not, the Courts will order 
a reasonable allowance, taking care that the remissness and 
negligence of the trustee in not having kept accounts shall not be 
encouraged, (c) 

As it is a rule that the cestui que trust ought to save the trustee 
harmless as to all damages relating to the trust, so within 
the reason of tha,t rule, where the trustee has honestly and by tmstee 
fairly, without any possibility of being a gainer, laid down 
money, by which the cestui que trust is discharged from being liable 
for a loss, or from a plain and great hazard of being so, the trustee 
ought to be repaid. (^) If he has a right to protect the property 
from immediate and direct injury, he must have the same right 
where the injury threatened is indirect but probable, (e) Thus, in 
several cases, it has been held that conservators of pubUc works 
and Municipal Commissioners are entitled to use the trust-funds 
at their disposal in opposing proposed Acts of Parliament which 
would injure the trust-property. (/) 

Again, if a trustee employs a proper agent to do an act, the 
directing which to be done was within the due discharge of 
his duty, and the agent makes a mistake, the consequences Wrongful 
of which subject the trustee to legal hability to a third pg.rty, agent, 
he is entitled to be indemnified out of the trust-estate, (gi) 

And trustees have been allowed expenses for acts which p 
were reasonable, though perhaps not strictly according to 



of administration' suit) ; H(mse v. Lord <c) Bahh v. Hyam, 2 P. Wms., 453 ; 

Wintertcm, 51 W. R., 26 (reasonable Hethersell v. Hales, 2 Ch. Rep., 158. 

public subscriptions for benefit of (d) Lewin, 12th Edn., 793 ; per Lord 

estate). In these cases reimbursement King in Balsh v. Hyam, 2 V. Wms., 

was allowed. But not in Bomnes v. 453; James v. May, 6 H. L., 328; 

CoUane (1893), 1 Ch., 547; Jeffretjs v. Be Hope W. N., (1900), 76; Ee Boy- 

Marshall, 23 L. J., 548 (costs of un- bould (1900), 1 Ch., 199. 

reasonable litigation) ; Warter v. (e) Bright v. North, 2 Phill., 220. 

Anderson, 11 Hare., 301 (unnecessary (/) Seg. v. Norfolk Commissioners of 

Jegal advice). . Sewers, 15 Q. B., 549; Attorney-General 

(a) Wilkinson v. Wilkinson, 2 S. & v. Andrews, 2 Mac. & G., 225 ; Attomey- 

S., 237 : see Webb v. The Earl of General v. Eastlake, U Hare, 205. 



y, 7 Ves., 480. (?) Benett v. Wyndham, 4 DeG. F. & 

(6) Be Muffet, 56 L. J. Ch., 600. J., 259. 



220 LIEN FOR EXPENSES. [LCC. VIII. 

law. (a) But a trustee, though he will be allowed to reimburse him- 
self for moneys expended in the repair and preservation of the 
trust-property, will not be allowed to charge for sums laid out in 
increasing the value of it.(6) 

A trustee is entitled to a hen upon the trust-estate for his out- 
of-pocket expenses, so long as it remains trust-estate(c), but 
■expenses. ^°* -^^^ ^^^ expenses of any act not warranted by the tmst.{d) 

He may retain the trust-deeds(e), or retain the expenses 
out of the income, vmtil provision is made for raising them out of 
the corpus(/), and the cestui que trust caimot compel a conveyance 
until the Hen is discharged, and this lien has priority over costs of 
a suit(5f), or to any charge created by the cestui que trust.(h) But 
the hen cannot be given effect to by a decree for foreclosure or sale, 
for that would be the destruction of the trust itself, (i) 

If a cestui que trust advances money for the purpose of paying 
a sum properly payable out of the corpus of the trust-funds, he will 
be entitled to a hen on the corpus for the amount advanced. (_7') 

But agents and other persons employed by the trustees, such 

as sohcitors, surveyors, etc., have no hen(A), and except in 

no lien. ^^^ ^^^ ^^'^^ ^^ fraud are accountable only to the trustees.(Z) 

If the instrument creating the trust expressly directs that a 

particular individual is to be employed at a salary, there will be a 

trust in his favour, and he will have a claim for his remuneration, 

but that can hardly be called a hen.(TO) It must appear that it 

was the intention of the author of the trust that the person named 

should be employed ; a mere request or recommendation is not 

sufficient, (w) The solicitor of trustees may set off payments which 

have properly been made by him in the performance of the trust 

(a) Attorney-General v. Pearson, 2 451. 

Coll., 581. ( j ) Todd t. Momhmm, L. R., 19 Eq., 

(6) Sandm v. Hooper, 6 Beav., 248. 69; Be Layton' policy (1873), W. N., 

(c) WorraU v. Harford, 8 Ves., 8; 49. 

Ex parte Chippendali, 4 D. M. G., 10 ; (k) WorraU v. Harford, 8 Ves., 8 ; 

Ex parte James, 1 D. & C, 272 ; HiU v. Hall v. Laver, 1 Hare, 571 ; Francis v. 

Moffan, 2 Moll., 460. Francis, 5 D. M. G., 108. Because they 

(d) Leedkam v. Chawner, 4 K. & J., are solicitors, etc., not of the estate but 
458 ; Ecclesiastical Commissioners v. of the trustees personal!}' ; Stanier v. 
Pinney (1900), 2 Ch. (C. A.), 736. Evans, 34 Ch. D., 470. But a solicitor 

(e) Da/rlee v. Williamson, 25 Beav., may be engaged on a condition that he 
•622 will look to the estate onlvfor payment 

(/) Stott V. Milne, 25 Ch. D. (C. A.), Blyth v. Elongate (1891), 1 Ch., 337. 
710. \l) Myler v. Fitzpatrich, 6 Mad., 

(y) Morison v. Morison, 7 D. M. G., 360; Attorney-General v. Earl of Ches- 

226; Moore v. Mc Glyn {190i), 1 I. R., terfieU, 18 Beav., 596: Lee v. Sankey, 

334; Be Turner (im), 2 Ch. (C. A.), L. R., 15 Eq., 204. 
216 (in priority to a charging order (m) See Williams v. Corbett, 8 Sim., 

under the Solicitors Act, 1860). 349 ; Hibbert v. HibbeH, 3 Mer., 681 ; 

(h) Be Exhall Coal Co., 35 Beav., ConseU v. BeU, 1 Y. & C. C. C, 569. 
449. (re) SJiaw v. Lawless, 5 C. & F., 129 ; 

(i) Darke v. Williamson, 25 Beav., Finden v. Stephens, 2 Phill., 142; 

622; Bowman v. Hill (1907), 1 I. R., Knott v. Cottee, ib., 192. 



Lee. VIII.] INTEREST ON ADVANCES. 221 

against his receipts in the same matter, (a) But the trustees are 
not entitled to adjustment ex 'post facto, if they are responsible for 
the mistake which has occasioned the inconvenience. (6) Where 
the sohcitor continued to do work while there was no legal representa- 
tive, there was no obligation to pay for such services, (c) 

A trustee who pays money out of his own pocket in 
respect of debts is in no worse position than a stranger who ^j^*'^^^* *"* 
makes advances, and is entitled to interest on his debt.(d) 

" If a person be trustee of different estates for the same cestui 
que trust under the same instrument, and he incurs expenses ^^^ 
on account of one estate in respect of which he has no in respect 
funds, it is presumed that he may apply to their discharge of different 
any money which has come to his hands from any other of the ^'""s*^- 
estates ; but he would not be justified in mixing up claims under 
one instrument of trust with those imder another."(e) 

If the trust-fund fails, and the trustees, acting in good faith 
and within their powers, have expended money for the . 

benefit of the trust-estate, or made an overpayment to the lability of 
beneficiary by mistake(/ ), they may call upon the cestuis cestui qm 
que trustmt personally to reimburse them. " I think," said f*""^' *° ^^~ 
Turner, L. J.(^), "that where parties place others in "" "'^^^' 
the position of trustees for them, they are in equity personally 
bound to indemnify them against the consequences resulting from 
that position." The money must have been properly expended. (A) 
This right arises, unless precluded by the nature of any particular 
transaction, whenever the relation of trustee and cestui que trust 
is estabhshed, and is independent of any authority of the cestui que 
trust to incur the habihty.(i) 

A trustee who has incurred a liability in respect of the trust- 
estate, may call upon the cestuis que trusfent to indemnify , , 
him against the Uability( j), even before any actual loss has " ^'""' ^*' 
been incurred, (i) 

(a) Re Sadd, 34 Beav., 652. Hosegood v. Pedier, 66 L. J. Q. B., 18 ; 

(6) Be Rome (1905), 1 Ch., 76. 18 ; Ecclesiastical Commisaionera v. 

(c) Be Wateon, 18 Q. B. D., 116. Pinney (1900), 2 Ch. (C. A.), 736. 

(d) In re Beulah Park Estate, L. R., (i) Hardocm v. BelUios (1901), A. C. 
15 Eq., 43; Finch v. Peacott, L. R., 17 (P. C), 118; Wise v. Perpetual Trustee 
Eq., 554. Company (1903), A. C.( P. C), 139 (the . 

(e) Price v. Loaden, 21 Beav., 508 ; case of a club where the property of 
Vraser v. Mwrdoch, 6 App. Gas., the club alone was held liable). 

855. But see Be Munsier Bank, 17 (j) James v. May, L. R., 6 H. L., 

L. R., Ir-, 341. 333; Hemming v. Maddick, L. R., 9 

(/) Livesey v. Livesy, 3 Russ., 287; Eq., 175. 

Dibbs V. Goren, 11 Beav., 483. (k) Pheni v. Gillan, 5 Hare, 1. As- 

(g) Ex parte Chippendale, 4 D. M. to the fund out of which expenses are 

(3. 54. payable; Be Southampton Imperial 

(h) Leedham v. Chawner, 4 K. & G., Hostel Company, 20 W. R., 435 ; Be 

458 ; CoUinson v. Lister, 20 Beav,, 368 ; Blundell, 40 Ch. D., 370 ; BlyOi v. 



222 



PUBLIC FUNDS. 



[Lec. VIII. 



Suit to 
recover 
advances. 



Public 
funds. 



A trustee who has expended moneys on the trust-estate at the 
request of a cestui que trust, may institute proceedings 
against him, or if he be dead, against his representatives, 
to recover the amount expended, provided that the expen- 
diture was justifiable, (a) 

Funds appUed by the Government for the pubUc service are 
not trust-funds in the hands of the persons empowered to 
disburse them, and the Court has no jurisdiction to take any 
account of the appUcation of such funds. (6) 

A person, other than a trustee, who has reaped the benefit of 
a breach of trust, must indemnify the trustee to the extent 
of the amount actually received by such person under the 
breach, imless the trustee, in committing the breach of 
trust, has been guilty of fraud ; and where he is a beneficiary, 
the trustee has a charge on his interest in the trust-property 
for such amount.(c) "Now," said Lord Langdale(<^), 
" nothing can be more clear than the rule which is adopted by the Court 
in these cases, that if one party having a partial interest in the trust- 
fund induces the trustee to depart from the direction of the trust 
for his own benefit, and enjoys that benefit, he shall not be permitted 
personally to enjoy the benefit of the trust, while the trustees are 
subjected to a serious liability which he has brought upon them. 
What the Court does in such a case is to lay hold of the partial 
interest to which that person is entitled, and apply it, so far as it 
will extend, in exoneration of the trustees, who, by his request and 
desire or acquiescence, or by any other mode of concurrence, have 
been induced to do the improper act. "(e) But in such a case the 
Court will not order the cestui que trust personally to recoup the 
trustee. (/) 



Indemnity 
from gainer 
by breach of 
trust. 

Indian Trusts 
Act, s. 33. 



Fladgate (1891), 1 Ch., 337; Hug}i£s- 
HaUett V. Indian Mammoth Oold Mines 
Co., 22 Ch. D., 561. As to the fund 
out of which expenses are payable, see 
Wilson, V. Beaton, 11 Beav., 492; 
Mihs V. Harrison, 9 Ch. App., 316; 
Alsop V. Bell, 24 Beav., 451 ; Sharp v. 
Lush, 10 Ch. I)., 468 ; Ee King (1904), 

1 Ch., 363; Be Orlebor (1908), 1 Ch., 
136; Be Hadley (1909), 1 Ch. (C. A.), 
20; see Lewin, 12th Edn., 800. 

(a) Balsh v. ^yam, 2 P. Wms., 453 ; 
Ex parte Watte, 3 DeG. J. & S., 394 ; 
JervisY. Wolferstan, L. R., 18 Eq., 18; 
Be Knott, 56 L. J. Ch., 318 ; Hobbs v. 
Wayet, 36 Ch. D., 256; WMtaker v. 
Kesshaw, 45 Ch. D. (C. A.), 320. 

(6) QrenmUe Murray v. The Earl of 
Clarendon, L. R., 9 Eq., 11. 

(c) And see Hobday v. Peters, 28 
Beav., 354; Vaughan v. Vanderstegen, 

2 Drew., 165; 363; Binhs v. Mickleffi- 



wait, 33 Beav., 409 ; Cooper v. Cooper, 
L. R., 7 H. L., 53 ; Jacubs v. Bylaiux, 
Xi. R., 17 Eq., 341 ; Doering v. Doering, 
42 Ch. D., 203. But the right of the 
trustee to impound the beneficiaiy's 
interest applies only to the extent of 
indenmifying the claims of other bene- 
ficiaiies and not of himself for other 
losses ; Evans v. Benyon, 37 Ch. D., 329. 

{d) Lincoln v. Wright, 4 Beav., 432. 

(e) Lewin, 12th Edn., 1179; .4to-- 
man v. Akerman (1891), 3 Ch., 212. 

(/) Baby v. Bidelialgh, 7 D. M. G., 
108 ; Wolsham v. Staintcm, 1 H. & M., 
337 ; BuUer v. B-utla; L. R., 5 Ch. D., 
554; 7 Ch. Div., 116; ChiUingymth 
V. Chambers (1896), 1 Ch. (C. A.), 685 
(cestui que trust also trustee); BoUo^i 
V. Cwre (1895), 1 Ch., 544 ; Mam v. 
Browne (1895), 2 Ch., 69. See s. 45 
of the Trastee Act, 1893 (56 & 57 
Vict. c. 53). 



Lee. VIII.] OPINION OF couBT. 223 

If there is any reasonable question or doubt as to the persons 
entitled under the instrument creating the trust, the trustees 
may institute a suit to have the trusts administered under Swt to 
the direction of the Court, for they cannot be expected to trJ^ts!'^ " 
run any risk, (a) 

The decree of the Court of first mstance is an indemnity to the 
trustee, and he cannot be made Uable for acting tmder it. Appeal 
If, therefore, he appeals from the decision, it will be at his 
own risk.(6) And he will be liable for costs, unless there '^"sts. 
were very good grounds for the appeal, even though he acts without 
iraud or mahce.(c) 

" Any trustee may, without instituting a suit, apply by petition 
to a principal Civil Court of original jurisdiction for its « ,• (.■ 
opinion, advice or direction on any present questions to^court'fOT 
respecting the management or administration of the trust- opinion in 
property other than questions of detail, difficulty or manage- 
importance, not proper in the opinion of the Court for trust-pro - 
simunary disposal. A copy of such petition shall be served perty. 
upon, and the hearing thereof may be attended by, such of Indian Trusts 
the persons interested in the application as the Court thinks "^ > ^- 34- 
fit. The trustee stating in good faith the facts in such petition, and 
acting upon the opinion, advice or direction given by the Court, 
shall be deemed, so far as regards his own responsibility, to have 
discharged his duty as such trustee in the subject-matter of the 
application. The costs of every apphcation under this section shall 
be in the discretion of the Court to which it is made, "(d) 

These provisions of the Indiaii Trust Act are substantially the 
same as those of Lord St. Leonards Act.(e) Under that Statute the 
■Court of Chancery in England has advised trustees as to the appro- 
priation of a fund for a legacy ; as to advancement, maintenance, and 
advancement out of capital, change of investments, sale of houses, 
compromises; and as to taking proceedings. (/) This statute was 
repealed by the Trustee Act, 1893, and an improved procedure has 
been devised under the Supreme Court Eules.(5r) Petitions for the ad- 
vice of the Court should relate only to the management and 



(a) Taylor v. GlanviUe, 3 Madd., 176 ; (6) Rowland v. Morgan, 13 Jur., 23 ; 

Goodson V. EUiaon, 3 Russ., 583 ; Tucker v. Homeman, 4 t>. M. G., 395. 

CampbeU v. Home, 1 Y. & C. C. C, (c) Be Knight's Trust, 27 Beav., 45 ; 

664 ; Gardiner v. Dowries, 22 Beav., Lotvson v. Copeland, 2 Bro. C. C, 156. 

397 ; Merlin v. Blagrave, 25 Beav., (d) See also Tru stee s and Mortgagees' 

139. But the Court is not bound to Powers Act (XXVm of 1866), s. 43. 

make an order for administration, if (e) 22 & 23 Viet., n. 35, s. 30; In 

the questions between the parties can the matter of the Madras Doveton 

be properly determined without it ; Trust Fund, 18 Mad., 443. 

Re De QueMeville V. De QuetteviUe (1903), (/) Seton on Decrees, 4th Edn., 

19 T. L. R., 383; De Llewellyn, 25 473. 

Ch. D., 66. (?) Or. 55. rule 13. 



224 SETTLEMENT OP ACCOUNTS. [LeC. VIIL 

investment'of trust-property (a) ; the Court will not construe an 
instrument, or make any order afEecting the rights of parties(&) or for 
the determination of questions involving breaches of trust, except by 
consent(c), or on a question which is future or contingent(<i) or on 
questions of detail and difficulty. (e) In In re Mackintosh's Settle- 
ment{f), the Court sanctioned the compromise by trustees of a claim 
depending on foreign law and the accoimts of disbursements on an 
estate in a foreign country, which accounts the trustees had no means 
of verifying. 

No appeal Kes in England from an order made by a Judge of 
first instance on such a petition, but an opinion has been given by 
the Lords Justices of Appeal at the request of one of the Vice- 
Chance]lors.(gi) 

An order made under this section will only indemnify the 
trustees upon the facts stated in the petition. (A) No affidavits 
can be used.(i) It is not necessary that all the trustees should 
join in the petition ; the words are " any trustee may apply."(_;) 

After the trust has been completed, the trustee is entitled to 

Ri htto \iaN& his accounts examined and to have a settlement of 

settlement them. He is bound to give accounts if demanded, but on 

of accounts. giving the accounts he is entitled, to use a familiar phrase, 

Jr't'T ^5"^*^ to have them wound up. If the party to receive is satisfied, 

' ' ' upon the account sent in, that nothing more is coming to 

him, he ought to close the account and give an acknowledgment which 

will be equivalent to a release ; on the other hand, if the cestui que 

trust is dissatisfied with the accounts, he ought to reqxiire to have 

the accounts taken ; he is not at hberty to do neither, and keep 



(a) Be Davies, 38 Ch. D., 210 ; Be Be Thorpe (1891), 2 Ch., 310, (direction 

Boyle, 43 Ch. D. (C. A.), 18 ; Be Oerald for payment into court). Comway v. 

Edward, 1 S. L. B., 218. For instances Feuion, 40 Ch. D., 612. 

of refusal of sanction for repair--, see Be (e) Be Weall, 42 Ch. D., 674 ; Dowse 

Barringtcm's settlement, 1 J. & H., v. Gorton (1891), Ac, 202. 

142; In re Lord Hotham's Trusts, (d) Be Machet's Will, 1 Jobs., 

L. R., 12 Bqi, 26; BrunskiU v. Caird, 625. 

16 Eq., 493; In re Nether Stowey {e) Be Giles, ^ Ch. D. (C. A.), 691; 

Vicarage, 17 Eq., 156 ; but see In re Be Hargreaves, 43 Ch. D. (C. A.), 401 

Jackson, 21 Ch. D., 786; Ex parte (procedure intended only for simple 

Vicar of St. Betolph Aldgate (1894), 3 questions). 

Ch., 544; In re Hotchkeys, 32 Ch. D., (/) 42 L. J., Ch., 208. 

408. (S) See Seton, 4th Ed., 493 ; Trimbak 

(6) Be Lorem's Settlement, 1 Dr. & Madhav v. Narayan Sari, 33 Bom., 

Sm., 401 ; and see Be Evans, 30 Beav., 429. (An executor cannot claim the 

232, for instance, Be Bridge, 56 L. J. advantages of this section. He can 

Ch., 779; Be Garlyon, 56 L. J. Ch., only institute an administration 

779 (disputes between the trust^estate suit). 

and legatees or beneficiaries) ; Elworthy {h)'Be Mochetfs Will Johns., 628. 

V. Harwy, 31 W. E,., 164 (questions of (i) Be Muggeridgt's [Trusts, Johns., 

trusteeship) ; Be Warren (1884), W. N., 625. • 

112 (claims of overlooked beneficiaries) ; (j) Ihid, 



Lee. VIII.] GENERAI, AUTHORITY OP TRUSTEE. 225 

an action for an account hanging for an indefinite time over the 
head of the trustee, (a) 

"A trustee may do all acts which are reasonable and proper for 
the realization, protection, or benefit of the trust-property, 
and for the safety and support of a cestui que trust who is auJhority 
not competent to contract," unless his powers in the case of of trustee, 
a special trust are limited, when he may not go outside them. Indian Trusts 
" Under particular circumstances," says Mr. Lewin,(6) ' ^" ^ 

" the trustee is held capable of exercising the discretionary 
powers of the hona fide proprietor ; for the trust-estate itself might 
otherwise be injuriously affected. The necessity of the moment 
may demand immediate decision, while the sanction of the parties 
who are beneficially interested could not be procured without great 
inconvenience (as where the cestuis que trustent are a numerous 
class), or perhaps could not be obtained at all (as where the cestuis 
que trustent are under disabihty, or not yet in existence), the alter- 
native of consulting the Court would always be attended with con- 
siderable expense, and, it may be, an expense wholly disproportioned 
to the importance of the occasion, and perhaps in the meantime the 
opportunity might be lost. It is, therefore, evidently in furtherance 
of the cestui que trust's own interest, that, where the circumstances 
of the case require it, the trustee should be at hberty to exercise 
a reasonable discretionary power, (c) But a trustee for adults 
should not take any proceeding without consulting his cestuis que 
trustent; and if he do, and the proceeding is disavowed by them, 
he may have to pay the costs himself."(d) 

If there is a discretion to be exercised under the trust, the 
trustee may apply to the cestui que trust for his advice and 
assistance in the exercise of it, and if the cestui que trust Advice of 
refuses his aid, he will not be entitled afterwards to complain ^^^'^" ^"^ . 
of what the trustee has done in the exercise of his own discre- 
tion. So, again, where it is doubtful what ought to be done under 
a trust, the trustee may give notice to the cestui que trust of his 
intention to do a partictdar act, unless the cestui que trust interferes ; 
and if the cestui que trust does not interfere, the Court will hold that 
the trustee is not Hable for doing that act. There are cases in 
which the trust is not definite or precise. If the trust is definite 
and clear, the trustee is bound to follow it, and will not be excused 
for a breach of trust, merely because he has given notice to the 
cestui que trust of the act which he intends to commit, (e) 

(a) 2 Spence, 46. See In re Shirinbai, 2 Bom. L. R. 41 

(6) 12th Edn., 709. (as to power of sale). 

(c) See Angdl v. Dawson, 3 Y. & C, (d) Lewin, 12th Edn., 710, citing 

317 ; Da/rhe v. Williamson, 25 Beav., Bradby v. Whitchurch, (1868,) W. N., 81. 

622 ; Harrison v. EandaU, 9 Hare, 407 ; (e) Life Association o/ Scotland v. 

Forshaw v. Bigginson, 8 D. M. 6., 827 ; Siddal, 3 DeG. F. & J., 73, per Turner, 

Ward V. Ward, L. R., 2 H. L., 784. L. J. 

As LT 16 



\ 



226 GENERAL AUTHORITY OF TRUSTEE. [LCC. VIH. 

Trustees are entitled to do any act which they would be 
compelled to do by the Court at the suit of the cestuis que 
What acts trustent, or which the Court itself would direct to be done, (a) 
^rus ee m y j,^^ instance, trustees may cut down decaying timber(&), 
or appropriate a legacy when the appropriation wovdd have 
been directed by the Court, (c) So if they are authorized to sell 
land, they may do such acts as in the iond fide exercise of their 
discretion are necessary to carry out the sale.((?) And if a trustee 
acting in the hona fide exercise of his discretion, makes a payment 
which, though not authorized by the trust, is in his opinion necessary 
to enable him to execute the trust, he will be allowed such pay- 
ment in passing his accounts, though he does not act prudently in 
assuming the responsibility of makmg such a pajmaent without the 
sanction of the Court, (e) Again, trustees may avoid unnecessary 
formahties.(/) 

A trustee can grant a reasonable agricultural Iease(5f) in the 
course of the fair management of the estate. (A) He may not lease 
to himself or to himself and others, (t) A general power to lease 
includes a building lease( j ) and where the power comprises building 
and mining leases, a buil(Mng lease can be granted with a reservation 
of minerals. (Z;) A trustee for sale cannot 'prima fade, grant a 
lease. (Z) 

Under the Indian Trusts Act " except with the permission 
of a principal Civil Court of Original Jurisdiction, no trustee shall 
lease trust -property for a term exceeding twenty -one years from 
the date of executing the lease, nor without reserving the best 
yearly rent that can be reasonably obtained." This provision is 
intended for the benefit of the cestui que trust, and leases for a longer 
term without permission of court are not void as being malum 
■prohibitum and illegal per se though they are voidable at the option 
of the cestui que trust. (m) 



(a) Shaw v. Borrer, I Keen, 576. (/) PeH v. Dewinkm, 2 De G. & J., 

(6) Waldo V. Waldo, 7 Sim., 261 ; 20 ; George v. George, 35 Beav., 382. 

Gent V. Harrisof); Johns., 517 ; JSarl (g) Naylor v. Arrtitt, 1 R. & M., 501 ; 

~ ■ Y. Welksky, L. E.., 1 Eq., 656. MiddleUm v. Dodswell, 13 Ves., 268 ; 



(c) Hutcheson v. Hammond, 3 Bro. but see contra. Wood v. Patteson, 10 
C. C, 128; Re Lepine (1892),1 Ch., Beav., 541. 

210. For the powers of administrators {h) Attorney-General v. Owen, IQ 

and other personal representatives, Ves., 600; and see Ee North (1909), 

see Barclay Y. Owen, 60 L. T. N. S., 220, 1 Ch., 625. 

and the Land Transfer Act, 1897 (60 & (i) Boyce v. Edbrooke (1903), 1 Ch., 

61 Vic. c, 65), o. 4. For the distino- 836. 

tion in the case of a contingent legacy, ( j ) Re James, 64 L. J. Ch., 686. 

see Re Hall (1903), 2 Ch. (C. A.), (k) Re Duke of Rvtland's Settled 

226. Estates (1900), 2 Ch., 206. 

(d) Forshaw v. Higginson, 3 Jur., (I) Evans v. Jackson, 8 Sim., 207. 
N. S., 478. (m) Section 36. Kadir Ibrahim v. 

(e) Ibid. See also Seagram v. Knight, ArunacheUam, 33 Mad., 397. 
L. R., 2 Ch., 630. 



Lee. VIIL] GENERAL AUTHORITY OF TRUSTEE. 227 

Where the cedui que trust is incapable of contracting, the 
trustee may expend money in necessary repairs in improving Rgp^i^g 
the estate, (a) As between Ufe-tenants and remaindermen, 
the former are entitled to have sums expended on the improve- 
ments charged on the corpus, tiey keeping down the interest. (6) 
But the trustee may not expend money in unnecessary expenses, such 
as ornamental improvements, (c) So a trustee might be justified in 
insuring(i), but where there is a tenant-for-life, he could not be 
advised to do so out of the income without the tenant-for-life's 
consent, though such consent is dispensed with to some extent 
under the provisions of the Trustee Act, 1893. (e) But if an 
annuity and a policy on the life of the cestui que vie be made 
the subject of a settlement, it is implied that the trustee is to pay 
the premiums out of the income. (/) 

An executor will be allowed a reasonable time for breaking up 
his testator's domestic estabhshment, and discharging his 
servants, and a period of two months is not an unreasonable up'estate 
delay, (gr) An executor is not bound to pay or dehver any 
legacy until the expiration of one year from the testator's death(fe) ; 
but if the assets are sufficient, he may pay before the expiration 
of the year.(*) 

A trustee will be allowed credit in his accounts for sums 
properly expended for the protection and safety or main- 
tenance and support of his cestui que trust at a time when ^^^^^ ^"" 
he, though adult, was incapable of taking care of 
himself.(j) Where a legacy is left to an infant and the parent is 
unable to support the child, the trustees may pay maintenance out of 
the interest(A) and where the amount of the legacy is inconsiderable, 
out of the principal itself. (?) The general rule is however not to 
break into capital for maintenance and in cases where the legacy 

(a) Bowes v. Earl of Strathmore, 8 Cal., 192. See also Oanoda Sundari v. 

Jur., 92. Nalini Ranjan, 12 C. W. N., 1065. 

(6) Omhterloney v. Ouchtorloney, 11 (i) Angeratein v. Martin, 1 T. & R., 

Mad. 360. 241 ; Pearson v. Pearson, 1 Soh. & Lef., 

(c) Attorney-General v. Geary, 3 Mer., 12; Garthshore v. Ghalw, 10 Ves., 13. 
513; Bridge v. Brovm, 2 Y. & C. 0. C, (j) Nelson v. Buncombe, 9 Beav., 
181 ; GtUikmd v. Crawford, 4 Ir. R. 211 ; Chester v. Bolfe, 4 D. M. G., 
Eq., 35; Be Gerards Settled Estates 798. 

(1893), 3 Ch. (0. A.), 252. (k) Sissan v. Shaw, 9 Ves., 285 ; 

(d) Fry v. Fry, 27 Beav., 146. Prince v. Hine, 26 Beav., 634. This 

(e) 56 & 57 Vie. C, 53, s. 18. This need not be the interest for the parti- 
section does not however apply to a cular year, but the gross amount of the 
trustee bound forthwith to convey interest ; Carmichad v. Wilson, 3 Moll. , 
absolutely to any beneficiary ; see Be 79 ; Be Wise (1896), 1 Ch., 281. 
Quiche's Trusts (1908), 1 Ch., 887. (I) Ex parte Green, 1 J. W., 253 ; 

{f)D'Arcy v. Croft, 9 Ir. Ch., 19. Be Howarth, 8 L. R. Ch. App., 415; 

(g) Field v. Peckelt, 29 Beav., 576. fle Hamilton,, 31 Ch. D. (C. A.), 291 ; 

(h) Act V of 1881, s. 117. See N. G. Cadrrmn v. Cadman, 33 Ch. D. (C. A.), 

Macleod v. Sorabji, 7 Bom. L. R., 756 ; 291 ; Re Hambrough (1909), 2 Ch. D., 

Administrator of Bengal v. Hughes, 40 621. 



228 COMPOUNDING OE RELEASING DEBTS. [LCC. VIII. 

is considerable, the trustee will not be advised in going beyond 
the amount of interest, (a) The inability of the parent to maintain 
the child is always a question of fact and has relation to status 
and needs and the duty of inquiry before grant while the father 
is alive, is on the trustee. (6) After the father's death, maintenance 
is granted to the mother without an inquiry as to her ability.{c) 

Subject to the provisions contained in the instrument 
Indian Trusts ^^ ^^^^^^ u j.^^ qj. j^qj.q trustees acting together may, if 

' " ' and as they think fit — 

{a) accept any composition or any security for any debt or 
for any property claimed; 

(h) allow any time for payment of any debt; 

(c) compromise, compound, abandon, submit to arbitration 

or otherwise settle any debt, account, claim or thing 
whatever relatmg to the trust ; and 

(d) for any of those purposes, enter into, give, execute and 

do such agreements, instruments of composition or 
arrangement, releases and other things as to them, 
seem expedient, without being responsible for any 
loss occasioned by any act or thing so done by them 
in good faith. 

The powers conferred by this section on two or more trustees 
acting together may be exercised by a sole acting trustee when by 
the instrument of trust if any, a sole trustee is authorised to 
execute the trusts and powers thereof." 

Trustees or executors may, under certain circumstances, com- 
C moound- pound or release debts where it is clearly for the benefit 
ing or of the trust-fund that they should do so.{d) If they are 

releasing unable to show that they have acted for the benefit of the 

debts. estate, they will be liable for the debt.(e). According to 

English law, an executor or administrator may pay or retain his own 
debt(/) a debt barred by the Statutes of Limitation(5f), and 

(a) Barlow v. Grant, I Vem., 255; 770. 

Beasley v. Magratli, 2 Sch. &Lef., 35. (f) 3Iohes7i Lallv. Basanta linmaree 

(b) Jervoise v. Silk, 1 G. Coop., 52; 6 Ca,l., 355; Hossainara v. Baliamanissa' 
BGO also Be Loflhouse, 29 Ch. D.{C. A.), 38 Cal., 342. See also Sander v.' 
921 ; Wilsmv. Tmner, 22 Ch. D. C. A.), Heathfidd, L. R.. 19 Eq., 21 ; Boyd v. 
.')21; Be. Bryant (1894), 1 Ch., 324. Brooks, 34 L. J. Ch., 605; Crowder v. 

(c) BiUingly v. Critchet, 1 B. C. Stewart, 16 Ch. D., 368. Though 
C, 268 ; bcmglas v. Andrews, 12 Beav., barred by limitation, Hill v. Walker, 
810. 4 K. & J.. 166; Biidgelt v. Budgeit 

{d)'Baicliffev. Wi7ich,n Bea,v., 216 ; (1895), 1 Ch., 203. See, however, 

Forsfutw V. Higginson, 8 D. M. G., 827 ; Trevor v. Hutchins (1896), 1 Ch. (C. 

Ex parte Ogle, L., R , 8 Ch., 715 (not A.), 844. 

liable for omitting to compound) ; Act (g) Coombs v. Coombs, L. R., 1 P. & 

V of 1881, s. 92, ill. (a). D., 289; Lowis v. Eumney, L. R., 4 

(e) WiUs V. Gresham, 5 D. M. G., Eq., 551. 



Lee. VIII.] SALE OF TRUST-PROPERTY. 229 

the same rule obtains in this country(a), the principle being, that 
the law of limitation merely bars the remedy but does not 
extinguish the debt. (6) An executor would not be justified in pa5ang 
a barred debt after a decree for administration(c), or after the 
creditor's claim has been dismissed as barred by statute in an 
administration-action, (d) 

" Trustees of an equity of redemption of lands mortgaged for 
more than their value, may, it is conceived, release the equity of 
redemption to the mortgagee, rather than be made defendants to 
a foreclosure-suit, the costs of which, so far as incurred by them- 
selves, would fall upon the trust-estate."(e) 

Under the Indian Trusts Act, " where the trustee is empowered 
to sell any trust-property, he may sell the same subject to prior charges 
or not, and either together or in lots, by public auction or private 
contract, and either at one time or at several times, unless the instru- 
ment of trust otherwise directs."(/ ) The trustees may sell either by 
public auction or private contract, as they may think most 
beneficial(5f), and it is not necessary that they should, before n°^trtv ' 
selling by private contract, have advertised the property for may be 
sale by public auction. (A) They should not delegate the sold, 
general trust for sale.(i) But there are many acts which yj'jt^" ^7"^^* 
the trustees must necessarily do through the agency of other 
persons and which are vaUd when so done, and the employment of 
agents to do such acts as an ordinary person acting with common 
care would employ agents to do, is justifiable.( j' ) 

Where the trustees sell by pubhc auction, they must take care 
to have the property properly advertised, and that due notice of 
the sale is given. If they neglect these precautions, the sale may 
be stayed by injunction at the suit of the cestui que trust, it being 
the duty of the trustee to sell to the best advantage. (A) The 



(a) Administrator-General of Madras Vict,, c. 38), s. 64 and Trustee Act, 

V. Hawkins, 1 Mad., 267. 1893 (56 & 57 Vict.. C, 537), o. 13. 

(6) Mohesh Lai v. Busunt Kmnaree, {h) Ibid. 

6 Cal., 340, overruling Sam Ghunder (i) Hardwick v. Mynd, 1 Anst., 

Ghoaaul v. Juggut Monmdhiney Dahee, 109. 

4 Cal., 283. (j) Ex parte Belchier, Amb., 218; 

(e) Fuller v. Redman, 26 Beav., 614 ; Ord v. Nod, 5 Madd., 438 ; Bosaiter v. 

Bring v. Greetham, 1 Eq. Rep., 442; Trafalgar Life Assurance Co., 21 Bestv., 

Be Wenham (1892), 3 Ch., 59. 377 ; Re Gascoine (1894), 1 Ch. (C. A.), 

(d) Midgley v. Midgley (1893), 3 470 ; Robinson v. Harkin (1896), 2 Ch., 
Ch., 282. 415; also Fry v. Tapsm, 28 Ch. D., 

(e) Lewjn, 12th Edn., 742. 268. 

(/) See also Trustees and Mortga- (&) Webb v. Earl of Shaftesbury, 7 

gee's Powers Act (XXVIII of 1866), Ves., 487 ; Attorney-General v. Corpora- 

8. 2. tion of Liverpool, 1 M. & C, 210; 

(<jr) Davey v. Durrani, 1 DeGr. & J., Attorney-General v. AspinaU, 2 M. & C., 

53.5. Ex parte Dunnan, 2 Rose, 66 ; 623 ; Milligan v. Mitdiell, 1 M. & K., 

Ex parte Hurly, 2 D. & C, 631 ; see 446 ; Dance v. GoUingham, L. R., 8 Ch.', 

also Settled Land Act, 1882(45 & 46 902. 



230 CONDITION OF SALE. [Lec. VIII. 

property may be sold in different lots, should that seem to be the 
course most hkely to attract purchasers(a), imless the instrument 
of trust provides that the property is to be sold in one lot. 

" The trustee making any such sale may insert such reasonable 
.. stipulations either as to title or evidence of title, or other- 

Act s. a8 wise, in any conditions of sale or contract for sale, as he 

thinks fit ; and may also buy in the property or any part 
thereof at any sale by auction, and rescind or vary any contract 
for sale, and re-sell the property so bought in, or as to which the 
contract is so rescinded, without being responsible to the bene- 
ficiary for any loss occasioned thereby."(&) 

The trustees should take care that every necessary and no 
unnecessary condition is attached to the sale.(c) They 
of saiV°'^^ must not omit any condition which the state of their title 
requires, but the employment by them of conditions of such a 
depreciatory character as to involve the purchaser in a breach of 
trust, will constitute an objection to the title, besides rendering 
them hable to their cestuis que trustent.{d) " I have always under- 
stood it to be the law consistently with authority and principle," 
said James, L. J.(e), "that however large may be the power of 
trustees under their trust-deed to introduce conditions limiting the 
title and other special conditions which have, or are calculated to 
have, a depreciatory effect on the sale, they are bound to exercise 
them in a reasonable manner — ^that they must not rashly or impro- 
vidently introduce a depreciatory condition for which there is no 
necessity." No general rule can be laid down, determining what 
conditions do, and what do not, fall within this description. Each 
case must depend mainly on its own circumstances, and a Court of 
Equity will allow trustees a fair discretion in employing special 
conditions. (/) They may stipulate that all objections to the title 
shall be taken within twenty-one days from the dehvery of the 
abstract, or be deemed waived, and that time in that respect is to 
be deemed of the essence of the contract, and that if a valid objec- 
tion be taken, they shall be at hberty to rescind the contract on 
returning the deposit, and to re-sell, (g') Such a condition may, in 
a certain sense, be depreciatory, yet it is one which a prudent 



(a) Ord V. Nod, 5 Mad., 438. son v. Bell, 2 Beav., 17 ; Boirell v. 

(b) See also Trustee's and Mortgagee's Dann,2 Hare, 440: see 1 Dav. Convey., 
Powers Act (XXVIH of 1860) s. 3. 441. 

Compare Trustee Act, 1893, (56 & (e) Dance v. Ooldingham, L. R., 

m Viet., e. 63), s.l3. 8 Ch., 909. 

(c) Ex parte Lewis, 3 Gl. & J, 173; (/) Sugd., 51. See Trustee, Act 
WilMns V. Fry, 2 Rose., 375 ; Dance \. 1893 (56 & 57 Vict., c. 53), s. 13. 

Ooldingham, 8 Ch. App., 902; Dunn v. (g) Hobson v. Bell, 2 Beav., 17; 

Flood, 25 Ch. D., 629 ; 28Ch. D. (C. A.), Falkner v. The Equitable Society, 4- 

586. Drew., 352. 

(d) Ord V. Nod, 5 Mad., 438; Hob- 



Lee. VIIL] power to convey. 231 

owner selling in his own right would introduce, (a) The trustees 
must be careful to avoid misdescriptions, smce it seems that they 
cannot enforce a condition for compensation if they make an error 
in describing the property. (6) Where a sale is made by trustees 
or mortgagees, or other persons who do not enter into the usual 
covenants for title, the fact should be mentioned in the conditions, (c) 
But trustees shoiild not introduce stipulations which are plainly 
not rendered necessary by the state of the title, and are calculated 
to damp the success of the sale. 

The condition should be framed so as to entitle the vendor to 
rescind, not merely on the purchaser insisting upon some objection 
as to title, but on his msisting on any objection or requisition as 
to either title or conveyance ; and should provide that the right 
may be exercised notwithstanding any intermediate negotiation 
in respect of such objection or requisition. ((^) A condition that 
the trustees shall only be called upon to covenant against incum- 
brances is not unusual, (e) So, where the trustees have no power 
to give receipts, they may stipulate that their receipts shall be 
sufficient, and that the concurrence of the cestuis que trustent shall 
not be required. (/) 

Trastees may fix a reserved bidding, and if the amount fixed 
is not reached at the sale, may buy in the property at that _ . 
price, (gf) They must be careful not to delay m reselling, ^ ^ ' 
otherwise, if there is a loss on the re-sale, they may be held 
liable. (^) 

" When the trust-property has been sold either by public 

auction or private contract, the trustees shall, for the p.„.r t 

purpose of completing any sale, have full power to convey or convey, 

otherwise dispose of the property in question in such manner Indian Trusts 

as may be necessary. "(t) ^'^*' =*■ 39- 

Trustees do not usually enter into covenants for title beyond 
a covenant against incumbrances( j ), and they cannot be compelled 
to enter into a covenant for further assurance. (A;) 



(o) Falkner v. Equitable Reversionary 183. 

Co , 4 Drew., 3.52. See Be Jackson & (g) Re Peyton's Settlement, 8 Jur., 

Haden'a Contract (miQ), 1 Ch. (C. A.), N. S., 453; 30 Beav., 2.52; EUe v. 

412; Quinian v. Home (1906), 1 Ch., Barnard, 28 Beav., 228; Bousjietd v. 

596; also Greenwell v. Porter (1902), Hodges, 33 Beav., 90. 

1 Ch., 530. {h) Taylor v. Tabrum, 6 Sim., 281 ; 

(b) White V. Cttddon, 8 C. & F., 766 ; Fry v. Fry, 27 Beav., 144. 

Hobson V. BeU, 2 Beav., 17 : but see (i) See also the Trustees and Mort- 

Hill V. Buckley, 17 Ves., 394. gagee's Powers Act (XXVIII of 1866), 

(c) 1 Dav., 441 ; 442. s. 4. 

(d) Dart V. & P., 5th Edn., 157. (j) Worhy v. Frampton, 5 Uaie, 560. 

(e) Dart V. & P., .5th Edu., 172. {k) Ibid. White v.J Foljambe, 11 
(/) Wilkinson v. Hartley, 15 Beav., Ves., 337. 



232 MAINTENANOE. [LCC. VIII. 

Where the instrument creating the -trust does not contain any 

p . power to the trustees to alter the mode of investment, the 

vary invest- trustees may, nevertheless, sell the property, and invest the 

ment. proceeds on any of the securities which would be authorized 

A 1:'^" I*^"^*^ y *^® Court(a), and vary such investment from time to 

' ■ ' time, provided that they never buy any redeemable security 

at a preDDdum.(6) But " where there is a person competent to 

contract and entitled at the time to receive the income of the 

trust-property for his Hfe, or for any greater estate, no such 

change of investment shall be made without his consent in 

writing, "(c) 

" "Where any property is held by a trustee in trust for a minor, 

such trustee may, at his discretion, pay to the guardians 

apply'pro- (^ *"y) °^ ^^'^^ minor, or otherwise apply for or towards 

pertyof his maintenance or education or advancement in hfe, or 

minors, etc., the reasonable expenses of his religious worship, marriage 

mainten- "^^ funeral, the whole or any part of the income to which he 

ance, etc. may be entitled in respect of such property ; and such 

Indian trustee shall accumulate all the residue of such income by 

s "^i ^ ^^y °^ compound interest, by investing the same and the 

resulting income thereof from time to time in any securities 

for the benefit of the person who shall ultimately become entitled 

to the property from which such accumulations have arisen : 

Provided that such trustee may, at any time, if he thinks fit, 

apply the whole or any part of such accimiulations as if the same 

were part of the income arising in the then current year. 

" Where the income of the trust-property is insufficient for the 
minor's maintenance or education or advancement in life, or the 
reasonable expenses of his religious worship, marriage or funeral, 
the trustee may, with the permission of a principal Civil Court of 
original jurisdiction, but not otherwise, apply the whole or any 
part of such property for or towards such maintenance, education, 
advancement or expenses ".(<i) 

Where the cestuis que trustent, or some of them, are infants. 
Power to *^® trustees may apply the trust-fund towards their 

apply pro- maintenance(e), either out of interest or under certain 
perty for circumstances out of the principal. But the principal 

should not be touched if it can be helped. The father, if 
alive, is the proper person to maintain the infants, and the 
Court will not direct maintenance without inquiring whether the 



mainten- 
ance. 



(a) See p. 167 ante. (d) Ibid., s. 33. 

(6) Waite v. LiUkwood, 41 L. J., Ch., (e) Buncombe v. NeUon, 9 Beav., 

636. 211; Chester v. Solfe, 4 D. M. G., 798. 

(c) See also Truetees and Mortgagee's In re Thi Estate of A. H. Cotton, 49 

Powers Act (XXVIir of 1866), s. 32. I. C. 277 (Bidministrator not trustee). 



Lee. VIIL] MAINTENANCE. 233 

father is able to maintain the infant himself (a); but no inquiry will 
bedirected in the case of a widow applying for maintenance. (6) 

If, however, the father has abandoned his children, or is 
destitute, the trustees will be allowed sums properly expended(c), 
upon the principle that a trustee may do what the Court would 
direct to be done.(d) 

Income which has been accimiulated may be resorted to for 
future maintenance, (e) 

The trustees will only be justified in applying the principal 
towards the maintenance of infant cestuis que trustent when it is so 
small that if invested, the income would be wholly insufficient. 
Thus, where four infants were entitled to a share of £1,538, 3 consols, 
and their father, a man of improvident habits, living apart from 
his wife, did not contribute to the support of either wife or children, 
the trustees were allowed two sums of £200 and £100, applied by 
them towards the maintenance of the infants.(/) If the fund is 
considerable; sajr Rs. 10,000, the trustees would not be safe in 
applying the principal without the sanction of the Court. (^) 

In certain cases the trustees may expend a portion of the 
principal of the trust-fund for the advancement(A) of a child 
unless there is a Kmitation over, for then the Court itself could not 
order the advancement, (i) The propriety of any particular advance 
is a question of fact and depends on the wording of the power and 
the discretion conferred on the trustees by the power. The benefit 
of the cestui que trust is the primary consideration.(j) 

Various Acts regarding the property of minors have been 
passed from time to time. The Guardian and Wards Act(i) Minors 
consolidates the law relating to minors and guardians and 
provides for the maintenance, education and advancement of wards 
and for the application of the income or the corpus of the wards 
" properties on that account." The Court of Wards Acts(i) 



(a) See Convej'anoing Act, 1881 12th Edn , 724 et seq. 
{4.i & 45 Viot. c, 41), s. 43. (h) As ti'what is advancement, see 

(5) Douglas v. Andrews, 12 Beav., Taylor v. Taylor, 20 L. R. Eq., 155; 

310. Re Scott (1907), 1 Ch. (C. A.), 1 ; Curtis 

(c) Sisson V. Shaw, 9 Ves , 288 ; v. Curtis (1901), I. R., 374). 
Princev.Hine,26Bea.v.,S3i. (i) See Lewin, 12th Edn., 734—736. 

(d) Maberly v. Turton, 14 Ves., Simpson on Infants, 22nd Edn., 190 — 
499. 191, 324 et seq. 

(e) Edwards v. Grove, 2 DeG. F. & (j) Simpson v. Brown, 13 W. R., 
-T., 210. 312 J also Phillips v. Phillips, 1 Kay, 

(/) Prince v. Hine, 26 Beav., 634 : see 40 ; Se Kershaw, 6 Eq., 322. 
also Ex parte Hay, 3 DeG. & Sm., 485 ; (k) Act VIII of 1890. 

Bridge v. Brown, 2 Y. & C. C. C, 181. (I) Bengal Act IX of 1879 ; Bombay 

{g) Barlow v. Grant, 1 Vem., 255: Act I of 1905; Madras Act I of 1902; 

see further as to maintenance, Tagore N.-W. P. Act III of 1899 ; Punjab Act 

Liw Lectures, 1877, Trevelyan ; Lewin, II of 1903. 



234 POWER TO GIVE RECEIPTS. [LCC. VIII. 

give tte Collector power to make provision for the maintenance and 
education of male minors subject to the Court. 

All the trustees must, as we have seen, join in giving receipts 
...... for any property transferred to them as trustees. In 

purchaser" properly drawn instruments of trusts, whether deeds or 
to see to settlements, a power is inserted authorizing the trustees 

application to give receipts for trust-moneys or other funds paid or 
° „^"^'^^^^^" transferred to them. AVhere there is no such power, it is 
in general incumbent on the person paying trust-money to see 
that it is applied as directed by the instrument of trust. The 
leading case on this point is Elliot v. Merryman.{a} There it was 
decided (i) that a purchaser of personal property from an executor will 
not be liable to see to the application of the purchase-money, except 
in cases of fraud ; (ii) that it is a general rule, that, where real estate 
is devised to trustees upon trust to sell for payment of debts gener- 
ally, the purchaser is not bound to see to the application of the 
money, and that the same rule applies where real estate is not 
devised to be sold for the payment of debts, but is only charged 
with such payment ; and (m) that if real estate is devised upon 
trust to be sold for the payment of certain debts, mentioning to 
whom in particular the debts are owing, the purchaser is bound to 
see that the money is applied for the payment of those debts. (6) 

The reason for the rule is this, at law the trustees are the 
owners, and they can, therefore, give a vaUd discharge. But in 
equity the cestuis que tnistent are the owners, and Courts of Equity, 
therefore, hold, that a purchaser must get a discharge from them 
unless the instrument of trust authorizes the trustees to give 
receipts. 

The Conveyance of Land Act(c) provides (s. 17), that where 
any property is sold, the proceeds of which are subject to 
o°LS^A(ft ^^y trust, the bmid fide purchaser of the property shall not 
in any case be bound to see to the application of the pur- 
chase-money to the purposes of the trust. ((^) 

" Any trustees or trustee may give a receipt in writing for any 
Power to money, securities or other moveable property payable, 

give receipts, transferable or dehverable to them or him by reason, or in 
Indian Trusts the exercise, of any trust or power ; and in the absence of 
Act, s. 42. fraud, such receipt shall discharge the person paying, 
transferring or deHvering the same therefrom, and from seeing to 



(a) Bam, 781; W. & T. L. C, 188; Re Benson (1908), 2 Ch., 356. 

59. (c) XXXI of 1S54. 

(6) See also Forbes v. Peacock, 11 (d) Repealed locally by the Tranffcr 

Sim., 152; Robinson v. Lou'ater, 17 of Propeity Act (IV of' 1882). 
Beav., 592 ; Rogers v. Skillicome, Amb., 



Lee. VIII.] OHAEGE OP DEBTS. 235 

the appKcation thereof, or from being answerable for any loss or 
misapplication thereof, "(a) 

The purchase-money should be paid to the vendor personally. 
An agent or sohcitor has no implied authority to receive it, .j. . 
and if the purchaser pays his purchase-money to a person purchase- 
not authorized to receive it, he is liable to pay it over again, money 
The possession of the executed conveyance, with the signed P^y^^^^- 
receipt for the consideration-money indorsed, is not of itself an 
authority to the solicitor of the vendor to receive the purchase- 
money. (6) Such a receipt is not conclusive evidence of payment, (c) 

It has been said, that where the vendors sell in a fiduciarv 
character as executors or trustees, they should receive the purchase- 
money themselves, (c?) In Webb v. Ledsam{e), however. Wood, 
V. C, said, that he knew of no authority for holding a man liable 
to pay over again purchase-money which he had paid to one of 
several trustees upon a receipt signed by them all. 

Where there is a charge of debts generally under a will, a 
purchaser is not bound to see to the apphcation of the 
puichase-money(/), nor where there is a charge of debts and S^if/^^ °^ 
legacies(gf) ; and it is immaterial that there were no debts 
existing, or that the debts and legacies have been since discharged. (^) 
" When," said Lord St. Leonards(i), " a testator, by his will, 
charges his estate with debts and legacies, he shows that he means 
to entrust his trustees with the power of receiving the money, 
anticipating that there will be debts, and thus providing for the 
payment of them ; it is by implication a declaration by the testator 
that he intends to intrust the trustees with the receipt and apphca- 
tion of the money, and not to throw any obligation at all upon the 
purchaser or mortgagee ; that intention does not cease because 
there are no debts ; it remains just as much if there are no debts 
as if there are debts, because the power arises from the circumstance 
that the debts are provided for, there being in the very creation of 
the trust a clear indication amounting to a declaration by the 
testator that he means that the trustees are alone to receive the 
money and apply it." 



(a) See also Trustees' and Mort (e) 1 K. & J., 388. 

gagees' Powers Act (XXVIII of 1866), (/) Ball t. Harris, 4 M. & C, 264; 

s. 36. In re Langmeade's Trusts, 7 D. M. G., 

(6) Vimy v. Chaplin, 2 DeG. & J., 353. 

468; Ex parte Swinbanks, 11 Ch. D., (g) Eland v. Eland, 4 M. & Cr., 

525. 420. 

(c) Winter v. Lord Anson, 3 Rus?., {h) Rogers v. Skillicome, Arab., 188 ; 
488. Johnson v. Kennett, 3 M. & K., 624 ; 

(d) Re Bellamy and the Metropolitan Robinson v. Lowater, 5 D. M. G., 272. 
Board of Works, 24 Ch. D. (C. A.), 387; (*) Stroughitt v. Anstey, 1 D. M. G., 
Ferrier v. Ferrier, 11 L. R. Ir., 56. 635. 



236 NOTICE OF BREACH OF TRUST. [LCC. VIII. 

The purchaser will not be bound to see to the application of 
the purchase-money, even if he knew that there were no debts, if 
the other purposes of the trust require a sale, (a) And where real 
estate is directed by will to be sold generally, the proceeds to form 
part of the personal estate, and subject to debts to be divided, the 
purchaser is not bound to see to the application of the purchase- 
money. (6) But where an estate is directed to be sold and is charged 
generally with the payment of legacies or specified debts, the 
purchaser must see to the apph cation of the purchase-money, (c) 

The trustee is not bound to give the purchaser any information 
as to the existence of debts, (cii) 

If the nature of the transaction affords intrinsic evidence(c) 

that the fiduciary vendor is not acting in the execution of 

breach of ^® '^^*^' ^^* ^ committing a breach of trust, as where the 

trust. consideration of the mortgage or sale is a personal debt due 

from the vendor to the purchaser, there the purchaser being 

a party to the breach of trust does not hold the property discharged 

from the trusts, but equally subject to the payment of debts and 

legacies as it would have been in the hands of the executor.(/) And 

if a purchaser or mortgagee knows that there were no debts existing 

at the time of the testator's death, or that they have since been 

paid, lea\Tng only legacies due, and that the money was raised for 

the private purposes of the parties raising it, he will be postponed 

to the unpaid legatees, (^f) 

^Vhere a particular time is fixed for the sa'e, and the proceeds 
are divisible among infants or persons then im-bom(A), the pur- 
chaser need not see to the apphcation of the purchase-money ; nor 
where it is to be applied upon trusts requiring time for their per- 
formance, as where other estates are to be purchased with it(i), 
or the trust is for persons not immediately ascertainable, as for 
instance, creditors coming in after a certain time under a deed. (_/) 



(o) Eland v. Eland, 4 M. & C, 420; Eland v. Eland, i M. & C, 420; Corser 

Stroughill v. Anetey, 1 D. M. G , 635 ; v. Cartwright, L. E., 7 H. L , 731 ; 

Howard v. Chaffer, 9 Jur., N. S., 767. Strougkill v. Ansley, 1 DeG. M. & G., 

(ft) Smith V. Guyon, 1 Bro. C. C, 648 ; Colyer v. Finch, 5 H. L. Ca., 923 ; 

186. see Golam Hiisnein v. Bank of Bombay, 

(c) Smith V. Guyon, 1 Bro. C. C, 186 ; 7 Bom. L. R., 407 : on appeal s\ib. nom. 
Horn V. Horn, 2 S. & S., 448 ; Doran v. Bank of Bombay v. Sitleman, 33 Brm., 
Wiltshire, 3 Sw., 701 ; Johnson v. 1 P. C. 

KenMi, 3 M. & K., 630; Re Rebbeck, (g) Howard v. Chaffer, 9 Jur., N. S., 

63 L. J. Ch , 596. 767. 

(d) Forbes v. Peacock, 1 Ph , 717; (h) Sowarsby v. Lacey,i Madd, 142; 
Sabin v. Heap 27 Beav., 553. See Breedon v. Breedon, 1 E. & My, 413: 
aho Re Ford and Hill, 10 Ch.X>. (C. A.), Laicender v. Stanton, 6 Madd , 46. 
365. (j) Doran v. WiUshire, 3 Swanf.t., 

(e) Re Henson, Chester v. Henson 697 ; Wood v. Hanuan, !^ Madd , 368. 
(1908), 2 Ch., 356. (j) Balfour y. Welland, 16 Ves., 151; 

(/) Watkins v. Cheek, 2 S. & S., 199; Orofmi v. Booth, 1 Drew, 548. 



Lee. VIII.] SUSPENSION OF trustee's powers. 237 

Where there is a charge of debts and power-of-sale in the event of 
the personal estate proving insufficient, the trustees are not bound 
to show, nor the purchasers to ascertain, that there is a deficiency, (a) 

In the case of Greender Chunder Ghose v. Mackintosh{b), the 
question how far lands purchased from a Hindu devisee are liable 
in the purchaser's hands for the testator's debts was considered, 
and Pontifex, J., held, that the question is on the same footing as a 
similar question would be under the English law and his Lordship 
said(c), that the creditors of the ancestor or testator may " follow 
his lands into the possession of a purchaser from the heir or devisee 
if it can be proved that such purchaser knew — (1) that there were 
debts of the ancestor or testator left unsatisfied; and also (2) that 
the heir or devisee to whom he paid his purchase-money intended to 
apply it otherwise than in the payment of such debts. But a 
purchaser, ignorant on either of these points, has a safe title, for no 
duty is cast upon the purchaser from the heir or devisee to enquire 
whether there are any debts of the ancestor or testator, or to see to 
the apphcation of his purchase-money. The decision in Corser v. 
Cartwright{d) is an authority for this, even in the far stronger case 
where there is an express charge of debts by the testator on the 
devised estate, at least when the devisee is also executor, for the 
Lord Chancellor cautiously confined his judgment to the case before 
him, and it is also an authority to show that even where there is an 
express charge of debts, the burden of proof is entirely on the 
creditor to show that the purchaser from the devisee had notice that 
the latter intended to misapply the purchase-money."(e) 

Under Indian Trusts Act " where a decree has been made in a 
suit for the execution of a trust, the trustee must not exercise 
any of his powers except in conformity with such decree, or ^"^P^nsion 
with the sanction of the Court by which the decree has been powers after 
made, or, where an appeal against the decree is pending, of decree, 
the Appellate Court."(/ ) They cannot commence or defend I^f ^" Trusts 
any suit without the leave of the Court(5') ; nor can trustees ' ''' ^^' 

for sale sell. (A) And an executor cannot pay debts, or invest his 
testator's assets, (t) But it has never been decided that an executor 
after the institution of a suit cannot sign a valid receipt for any part 
of the testator's personal estate. (^■) A decree must have been made 
in the suit. The reason of this ride is, that the plaintiff may, at any 

(a) Bird v. Fox, 11 Hare, 40 ; Pi£r(x S. C , 2 R. & M., 75 ; Minors v. Battisov, 

T. Scott, 1 Y. & C, Ex., 257. L. R., 1 App. Cos., 428. 

(6) 4 Cal , 897 ; Sokeman v. Rokim- {g) Jones v. Powell, 4 Beav., 96. 

tula, 6 Bom. L. R., 800. {h) Walker t. Smallwood, Ambl., 676 ; 

(c) Page 906. Annersley v. Ashurst, 3 P. Wms., 282! 

(d) L. R, 7H. L, 731. (j) Mitchdson v. Piper, 8 Sim., 64; 

(e) See further as to trustee's re- Irby v. Irby, 24 Beav., 525. 

ceipts. Lewin, 12th Edn, 533— 539. (j) Widdosmi v. DmcjI:, 3 Mer., 494 ; 

( / ) Mitchelson v. Piper, 8 Sim., 64 ; Betkell v. Abraham, L. R., 17 Eq., 2i\ 
Shewen v. Vanderhorst, 1 R. & M., 347 ; 



238 SUSPENSION OF trustee's powers. [Lee. VIII. 

time before decree, withdraw his suit(a) ; and should he do so, the 
progress of the trust may have been an'ested for no purpose. Still it 
is safer for the trustees, after a suit has been instituted, not to act 
without the leave of the Court ; and if, by acting independently of the 
Court, expenses be incurred, which might have been avoided had the 
trustees applied to the Court, they may be made to bear them 
personally.{6) 

When a suit has been instituted for the administration of a 
trust and a decree (though only preliminary) has been made, that 
attracts the Jurisdiction of the Court and the trustee, under the 
deed of trust cannot, afterwards, exercise the power of nomination 
of a new trustee except with the sanction of the Court and such a 
nomination, if made, is invalid, (c) 

(a) See Act V of 1908, Or. XXIII, (c) Amrita Bibee v. Kanhai Lai, 32 

rule 1. Cal, 448. 

(6) Lewin, 12th Edn,, 747. 



LECTURE IX. 

-: ■ DISABILITIES OF TRUSTEES. 

Trustee cannot renounce after acceptance : Indian Trusts Act, s. 46 — Trustee 
cannot delegate : Indian Trusts Act, s. 47 — Employment of solicitor to 
invest — Delegation to co-trustee or co-executor — Necessary delegation — 
Co-executor — Delega.tion authorized by author of trust — Representatives 
of surviving trustee — Fraud by co-trustee — • Discretionary trust — Minis- 
terial acts — Liability of agent — Co-trustees cannot act singly — Indian 
Trusts Act, s. 48 — All trustees must join in receipt and conveyance — Proof 
in insolvency — Exception to rule in case of public trust — Special power — 
Acknowledgment — Costs of acting independently : Indian Trusts Act, s. 49 — 
Injunction — Remuneration for trouble : Indian Trusts Act, s. 50 — Carrying 
on business — Surviving partner trustee — SoUcitor trustee — Extent of 
charge allowed — Costs — Trustee appointed by Court — Professional 
charges not allowed — Settled account . — Remuneration fixed by author 
of trust — Contract for lemuneration with cestuis que trustent - — Gift 
coupled with duty — Expenses of agent — Curators under Act XIX of 
1841 and Act XL of 1858 — OfiSoial Trustee — Administrator-General — 
Trustee may not make a profit from his office : Indian Trusts Act, s. 51 — 
Employing trust-funds in trade — Compounding debts or mortgages and 
purchasing — Purchase for benefit of cestui que trusl — Cestui que trust 
cannot give to trustee — Rule applies to all fiduciary relations — Partners 
— Purchasing share of deceased partner — Instances of rule — Trustee 
retiring for a consideration — Extent of Uability — Failure of heirs of cestui 
que trust — Failure of next-of-kin ■ — Trustee for sale cannot purchase — 
Trustee purchasing from himself — That price fair immaterial — So nature 
of property, or mode of purchase • — Trustee who has never acted — When 
cestui que trust may set aside sale — Trustee may not buy for another — 
Agent of trustee may not purchase — Trustee taking lease — Time within 
which sale must be set aside — Confirmation — Purchase from cestui que 
trust — Fiduciary relation dissolved — Burden of proof — Purchase by 
creditors — Assignee — Leave to bid — Purchase from infants — Legal 
representatives — Mortgagee ■ — Lending to trustees. 

Aftee a trustee has once accepted the trust, either expressly 
or impliedly, he cannot, by any act of his own, without 
communication with his cestui que trust, denude himself Trustee 
of the character of trustee until he has performed his renP"' 
trust(») ; any subsequent renunciation will be void. (6) after ac- 
Thus, the trustee of a temple cannot alienate the trust- ceptance. 
property subject to the trusts attaching to it, and so get Xc^'^" Trusts 
rid of the office, (c) The only way in which a trustee can > • 4 • 

obtain a release from the office is by obtaining his discharge from 

(u) OhalmerT. Bradley, 1 Jac. & W., Cas., 80. 

68. (c) Rajah, of Kovilagom v. Kottayath, 

(6) Read v. Truehve, Ambl., 417 ; 7 M. H. C. R., 210. 
Matison v. Baillie, 2 Maoq., H. L. 



240 DELEGATION OP TRUSTS. [LeC. IX. 

• 

the Court, or, if all the cestuis que trustent are competent to 
contract, by obtaining their consent to his renunciation ; or by 
retiring under a statutory power under a special power in the 
instrument of trust.(a) With the subject of appointments of new 
trustees I shall deal hereafter. Thus, where A was named 
executor in a will, and acted on behalf of particular legatees, 
disclaiming an intention of interfering generally, and afterwards 
renounced in favour of B, who was named a trustee in the same 
will, and who thereupon obtained administration with the will 
annexed ; and B subsequently died insolvent after having possessed 
himself of the assets, — it was held, that A was liable as executor 
notwithstanding his renunciation, and was answerable for the acts 
of B. " Executors," said Lord Eedesdale, " must either wholly 
renounce, or if they act to a certain extent as executors, and 
take upon them that character, they can be discharged only by 
administering the effects themselves, or by putting the adminis- 
tration into the hands of a Court of Equity."(6) Where a trustee 
gave a bond to convey trust-property, and the administrator of 
the cestui que trust sued upon the bond and recovered the penalty, 
it was held, nevertheless, upon a bill to compel a conveyance, 
that the trustee was liable to carry out the trust upon the penalty 
being refunded with interest, (c) 

The Indian Trusts Act (s. 47) provides that " a trustee 
cannot delegate his office or any of his duties either to a 
co-trustee or to a stranger, unless (i) the instrument of 
cannoT *™®t ^° provides, or (ii) the delegation is in the regular 

delegate. course of business, or (Hi) the delegation is necessary, 

Indian Trusts qj. (^'^^ ^j^g beneficiary, being competent to contract. 
Act =. 47. consents to the delegation " and adds that " the appoint- 
ment of an attorney or proxy to do an act merely ministerial 
and involving no independent discretion is not a delegation within 
the meaning of this section." 

As a general rule, a trustee cannot delegate his office. If he 
does so, he will be liable for any breach of trust committed by the 
person to whom the office has been entrusted, for trustees cannot 
divest themselves of their trust at their pleasure. («!) " Trustees," 
said Lord Langdale(e), " who take on themselves the management 
of property for the benefit of others, have no right to shift 
their duties on other persons ; and if they employ an agent, they 

(a) Doyle v. Blake, 2 Sch. & Lef., Stevens (1898), 1 Cli., 162. 

245 : see Indian Trusts Act, s. 71. (c) lloorecroft v. Dowding, 2 P. 

(6) Doyle v. Blake, 2 Sch. & Lef., Wms., 314. 

231 : see also Lowry v. Fulton, 9 Sim., (d) Bradwellv. Catchpole, 3 Swanst., 

104 ; Belchior Francisco Ferras v. 79 (n). Krishnamacharlu v. Banga- 

Roque Mariano Dos Angos, 9 S. D. A., charlu, 16 Mad., 73. 

921. Quaere, whether the liability is (e) Turner v. Carney, 5 Beav., 6l7. 
not limited to the assets received 1 Be 



Lee. IX.] DELEGATION OF TRUSTS. 241 

remain subject to responsibility towards their cestui que trust, 
for whom they have undertaken the duty." In that case the 
trustees were empowered by the trust-deed to employ an agent, 
and the decree directed an enquiry as to whether it was by the 
neglect or default of the trustees that they were unable to render 
a better account. And in a subsequent case(a) Lord Langdale 
said : " In cases of breach of trust, it is of great importance to 
the community that trustees, who take on themselves the protection 
of the property of others, should be made to feel that they will 
be held liable for trust-property which is lost by their acts of 
omission or commission, and that such liability will be enforced 
against them." 

Trustees have been held liable when they have employed 
their solicitors to invest the trust-fund, and it has been lost Employ- 
through the fraudulent acts of the persons employed, mentof 
" If," said Lord Eldon(6)', " a trustee trusts an attorney, solicitor to 
he must abide by the effect of that confidence." And '"^^^ ' 
it is no defence that, in the employment of the solicitor, ordinary 
care and discretion was exercised, (c) In one case trustees were 
held liable for lending money on the valuation of the mortgagor's 
agent without looking into the matter themselves. ((^) 

If trustees or executors delegate the execution of the trust 
or the distribution of the assets to one of their own number, 
and a loss ensues through his wrongful act, they will be to^o^trustee 
liable, for it is the duty of each trustee or executor to or co-exe- 
watch over the trust-property, (e) cutor. 

But where an executor who had proved, but never acted, 
received a bill of exchange by post on account of the estate, and 
immediately sent it to the acting executor, and it was lost, — it 
was held, that the first executor was not liable, as he had never 
acted in the trust. (/) 

In Ex parte Belchier{g) it was sought to make the Necessary 
assignee of a bankrupt liable for the default of a broker, delegation. 

{a) Ghost T. Waller, 9 Beav., 497. 3S3 ; Davis v. Spurling, IR. & M., 66 ; 

(b) Chambers v. Minchin, 7 Ves., Clough v. Bond, 3 M. & Cr., 497 ; ISaves 
196. V. Hickson, 30 Beav., 136 ; Eodbard v. 

(c) Bostock V. Floyer, L. R., 1 Eq., Cooke, 25 W. R., 505 ; Robinson v. 
26. See also Griffiths v. Forter, 25 Hariwi (1896), 2 Ch., i\5; Wy man x. 
Beav., 236; IngU v. Partridge, 32 Paferson (1900), A. C. (H. L. So.), 271. 
Beav., 661 ; 'WoodY.Weightman,'L.'&., In re ll'e??.? and Hopkinson's Contract 
13 Eq., 434 ; In re Bird, L. R., 16 Eq., (1916), 2 Ch., 289. 

203;Xleu;orv. JSroofe, 54L. J.jST. S.,Ch., (/) Balchenv. Scott, 2 Ves. Jr., 678. 

830 ; Baylis v. Dick, W. N. (1878), 81. See also Churchill v. Hobson, 1 P. W., 

As to liability of an assignee in bank- 141. 

ruptoy for loss caused by acts of an (g) Amb., 218. Re Speight, 22 Ch. 

attorney empowered to recover debt, D. (C. A.), 729 ; 9 App. Cas., 1 ; Learoyd 

seeLewin, 12tli Edn., 287. v. Whiteley, 12 App. Cas.., ISi ; Blyth 

(d) Ingle V. Partridge, U Beav., 411. v. Flagale (imi), 1 Ch., 3ZT. See also 

(e) Langford v. Gascoyne, 11 Ves., Shephard v. Harris (1905), 2 Ch., 310. 

AL, T 16 



242 DELEGATION OF TRUSTS. [LCC. IX. 

who had been employed to sell some of the bankrupt's pro- 
perty. Lord Hardwicke said : "If the assignee is chargeable in 
this case, no man in his senses would act as assignee under 
commissions of bankrupt. This Court has laid down a rule with 
regard to the transactions of assignees, and more so of trustees, 
so as not to strike a terror into mankind acting for the benefit of 
others, and not for their own. Courts of Law, and Equity too, 
are more strict as to executors and administrators ; but where 
trustees act by other hands, either from necessity, or conformable 
to the common usage of mankind, they are not answerable for 
losses. There are two sorts of necessities : ji/rst, legal necessity ; 
secondly, moral necessity. As to the first, a distinction prevails 
where two executors join in giving a discharge for money, and 
one of them only receives it, they are both answerable for it, 
because there is no necessity for both to join in the discharge, 
the receipt of either being sufficient ; but if trustees join in 
giving a discharge, and one only receives, the other is not 
answerable, because his joining in the discharge was necessary. 
Moral necessity is from the usage of mankind. If a trustee acts 
as prudently for the trust as for himself and according to the 
usage of business, he will not be liable. 

" If a trustee appoints rents to be paid to a banker at that 
time in credit, and the banker afterwards breaks, the trustee is not 
answerable. So, in the employment of stewards and agents, the 
receiver of Lord Plymouth's estate(a) took bills in the country of 
persons who at the time were reputed of credit and substance, in 
order to return the rents to London : the bills were protested and 
the money lost, and yet the steward was excused. None of these 
cases are on account of necessity, but because the persons acted 
in the usual method of business. "(6) In Re Weall{c), the limits 
of the power of delegation have been well described. " A trustee 
is bound " said Kekewich, J., "to exercise discretion in the choice 
of his agents, but so long as he selects persons properly qualified 
he cannot be made responsible for their intelligence or their honesty. 
He does not in any sense guarantee the performance of their duties. 
It does not, however, follow that he can entrust his agents with 
any duties which they are willing to undertake, or pay them or 



(a) Knight V. The. Earl of Plymouth, Ratigacharlu, 16 Mad., 7.^. Custom 

1 Dick., 120. may recognise delegation ; Miinnianv. 

(6) See also Wren ■, . Kirton, 11 Agniharman, 15 M. L. T., 277: 2? I. C, 

Ves , .377; Massey v. Banner, I J. & \41 ; Samachandrav 2'rimbal\ 16 Bom.. 

W., 248 ; Joy v. Campbell, 1 Sch. & 371, P. C. ; see also Kunjunneri v, 

Lef., 341. X^ilakunden, 2 Mad., 167 ; Krishnan v, 

(c) 42 Ch. D., 078 ; see Robinson v. I'eZoo, 14 Mad., 301 ; Raman v. Shatha- 

Marldn (1896), 2 Ch., 415. See also nathan, 14 Mad., 312 ; Subroya 

Narayanasami v. Kumarasami, 7 M. Karnnnaya v. Svbraya, 8 M. L. T., 

H. C. R., 267 ; Krishnamacharlu v. 325. 



Lee. IX.] DELEGATION OF TRUSTS. 243 

agree to pay them any remuneration which they see fit to demand. 
The trustee must consider these matters for himself, and the court 
would be disposed to support any conclusion at which he arrives, 
however erroneous, provided it is his conclusion — that is, the 
outcome of such consideration as might reasonably be expected 
to be given to a like matter by a man of ordinary prudence, 
guided by such rules and arguments as generally guide such a 
man in his own afEairs." 

Where an executor possessing assets of his testator hands 
over the assets to a co-executor, and they are misapplied _ 
by him, the executor who so hands them over will be 
answerable for their misapplication, because he had a legal right 
to retain them, and might have preserved them, and it was his 
duty to do so ; unless, indeed, they were so handed over for 
the express purpose of a special administration by the co-executor 
as for the payment of a particular debt, (a) 

So when a trustee delivered a cheque to the broker in the 
usual course of business on the receipt of the bought note for 
securities, he was not liable if the broker misappropriated it, though 
this course was deprecated in the case of negotiation with a muncipal 
corporation. (6) But if the trustee departed from the usual course 
of business and entrusted an " outside " broker without reasonable 
cause with a large sum for future investment, he was held liable 
for a consequent loss.(c) 

But trustees cannot be answerable, if the instrument of trust 
provides for delegation, and they follow the directions oeieeati 
given by it. Thus, a testator by his will recommended his authorized 
executors to employ A (who had been in the testator's own by author 
employment) as their clerk or agent. The executors gave ° *''"^*- 
A a power-of-attorney to receive debts, and A subsequently became 
insolvent. It was contended that the executors were answerable 
for the default of A ; but Sir A. Hart said, that if a testator pointed 
out an agent to be employed by the executor, and such employee 
received a sum of money, and immediately made default, the 
executor would clear himself by showing that the testator 
designated the person, and that he could not by the exercise of 
reasonable diligence recover the money, (rf) 



(a) Davis V. Spurling, 1 R. & M., 66 : 415 ; see also Lowe v. Shields (1902', 

and see Trutch v. Lamprell, 20 Beav., 1 I. R. (C. A.), 320 (where money was 

116- Thompson v. Finch, 22 Beav., handed over to a co-executor by impru- 

316 : 8 D. M. G., 560; Cowell v. Gat- dence), see also Lakhmi CJiand v. Jai 

■conie 27 Beav., 568. Kuvarbai, 29 Bom., 170. 

(6) Re Speight, 22 Ch. D. (C. A.), (d) Kilbee v. Sneyd, 2 Moll., 199; 

727 • 9 App. Cas., 1. Doyle v. Blake, 2 Sch. & Lef., 232, 

(c) Robinsonv. Harkin (1896), 2 Ch., 239. 



244 DELEGATION OF TRUSTS. [LeC. IX. 

Again, where property was bequeathed to trustees upon 
Representa- certain trusts, to be executed by them or the survivor of 
tivesof them, or the assigns of such survivor, and one of the 

surviving trustees died, — it was held, that the survivor might 

rus ee. bequeath the trust-property to trustees upon the trusts 

of the original will. (a) " Where," said Lord Langdale, " a trust- 
estate is limited to several trustees and the survivor of them, and 
the heirs of the survivor, and no power of appointing new 
trustees is given, we observe a personal confidence given, or at 
least probably given, to every one of the several trustees, as any 
one may be the survivor ; the whole power will eventually come 
to that one, and he is entrusted with it, and being so, he is not, 
without a special power to assign it to any other, he cannot of 
his own authority, during his own life, relieve himself from the 
duties and responsibilities which he has undertaken. 

" But we cannot assume that the author of the trust placed 
any personal confidence in the heir of the survivor ; it cannot be 
known beforehand which one of the several trustees may be the 
survivor ; and as to the contingent survivor, it cannot be known 
beforehand whether he may have an heir or not, or whether the 
heir may be one, or may consist of many persons, trustworthy or 
not, married women, infants, or bankrupts, within or without the 
jurisdiction. The reasons, therefore, which forbid the surviving 
trustee from making an assignment, inter vivos, in such a case, do 
not seem to apply to an assignment by devise or bequest ; which 
being made to take effect only after the death of the last surviving 
trustee, and consequently after the expiration of all personal con- 
fidence, may perhaps not improperly be considered as made without 
any violation or breach of trust. It is to take effect only at a time 
when there must be a substitution or change of trustees, — there 
must be a devolution or transmission of the estate to some one or 
more persons not immediately or directly trusted by the author 
of the trust, — and the estate subject to the trusts must pass either 
to the JwBres natus or hceres foetus of the surviving trustee, and if 
the heir or heirs-at-law, whatever may be their situation, condition, 
or nrunber, must be the substituted trustee or trustees, the greatest 
inconvenience may arise, and there are no means of obviating them 
other than by an application to the Court. With great respect 
to those who think otherwise, and quite aware that some incon- 
veniences which can only be obviated in the Court may arise from 
devising trust-estates to improper persons for improper purposes, 
I cannot at present see my way to the conclusion, that in the case 
contemplated, the surviving trustee commits a breach of trust by 
not permitting the trust-estate to descend, or by devising it to 



(o) Titley v. Wolstenholme, 7 Beav., 424. 



Lee. IX.] DELEGATION OF TRUSTS. 245 

proper persons, on the trusts to which it was subject in the hands 
of the surviving trustees. "(a) 

And trustees are not liable to their cestuis que trustent for 
money belonging to the trust which a co-trustee gets into 
his possession without their consent or knowledge and by a c "trustee, 
fraud upon them. Thus, where trustees drew a cheque 
upon a banker, and crossed the cheque with the names of other 
bankers, and delivered it over to one of their number for the 
purpose of paying it into the bank of the bankers with whose name 
the cheque was crossed, it was held, that the co-trustees were not 
liable for the misapplication of the money by the trustee to whom 
the cheque was delivered. (&) 

When executors employed a co-executor, a stock-broker of 
good reputation and confidence to convert railway bonds into 
bonds to bearer, they were held to be justified " by necessity" (c), 
and when it is not usual to attend the bank personally and accept 
a transfer, as in the case of purchase of inscribed stocks, the fraud 
of a co-trustee, acting as a broker, will not entail the liability on 
the trustees, (c?) 

If the trust is of a discretionary character, a trustee cannot 
delegate the execution of it under any circumstances either ^. 
to a stranger or to a co-trustee, or co-executor, and not ary trust, 
only will the trustee so delegating be liable for any loss, 
but the exercise of the discretion by the substitute will be actually 
void.(e) 

A trustee may carry out the ministerial portion of an act 
connected with the trust by attorney or proxy ; for instance, • to • i 

if he has agreed to sell the trust-property, he may execute ^^^g^ 
the instrument transferring the property by his attorney, 
for he does not delegate any portion of the confidence reposed in 
him.(/) 

(a) See also Mortimer v. Ireland, 1 1 859. See also Shepherd v. Harris 

Jtii.,121; Ashtonv. Wood,3Sm.&0,., (1905), 2 Ch., 310 ; Satya Kumar y. 

436 ; Be Cunningham, and Frayling Satya Kripdl, 10 C. L. J., 603. 

(1891), 2 Ch., 587 ; Re Eumney (1897), (c) Re Oasquoine (1894), 1 Ch. (0. 

2 Ch. (C. A.), 351 ; Hall v. May, 3 K. & A.), 470. 

J., 585. (In this case a broader prin- (d) Shepherd r. Harris (1905), 2 Ch., 

ciple was laid down) ; Re Waidamis 310. 

{1908), 1 Ch., 123; Re Morton and (e) Alexander v. Alexander, 2 Ves., 
Hallet, 15 Ch. D., 143 ; Re Crunden and 643 ; Bradford v. BelfieU, 2 Sim., 264 ; 
Meux's Contract (1909), 1 Ch., 690. Hitehv. Leworthy, 2'RaTe, 2m ; Crewe 
i'or the present English Law, see v. Dichen, 4 Ves., 97 (even to a co- 
Conveyancing and Law of Property executor or co-trustee) ; Attorney- 
Act, 1881 (44 & 45 Vic, c. 41), Generals. Glegg, I &.fk..,3m. 
a. 30. , ( / ) Attorney-General v. Scott, 1 Ves. 

(6) Barnard V. Bagshaw,S DeG. 3. & St., 413; Ex parte Rigby, 19 Ves., 

S., 355; Re^Bennison, 60 L. T. N. S., 463. 



246 JOINT NATUBE OF OFFICE. [LCC. IX. 

The agent of a trustee is not accountable to the cestuis que 

trustent, though a substituted trustee is(«), and payment 

Liabiluy of ^^ ^^ agent authorized by trustees to receive trust-moneys 

discharges the person paying the money. (&) An agent 

who has accepted the delegation of the trust or has been party to 

a breach of trust, will, however, be responsible, as a constructive 

trustee, to the cestuis que trustent. (c) 

The office of co-trustees is joint, they all form as it were one 
_ , . collective trustee, and therefore must execute the duties of 

cannot act their office in their joint capacity(i), except where the 
singly. instrument of trust otherwise provides. An act done by 

Indian Trusts Qj^g jjjg^y ]|jg subsequently approved by the other ; but the 
"^'^■^ ■ approval must be strictly proved, (e) It is not un- 
common to hear one of several trustees spoken of as the acting 
trustee, but the Court knows of no such distinction ; all who accept 
the office are in the eye of the law acting trustees. During the 
joint lives of the trustees if one refuse to act, the other cannot act 
without him; but the trust devolves upon the Court. (/) 

It follows from this doctrine of unity among co-trustees, that 
All trustees ^^^^ must all join in giving a receipt; and that, unless 
must join the instrument of trust specially provides that the receipt 

in receipt of some or One of the trustees shall be a discharge, a receipt 

veyance" ^^^ signed by all will be invalid, (gr) So they must all 

join in a conveyance of the trust-estate. (A) 

If there are many trustees, the Court will order that the trust- 
moneys may be paid to them or any two of them.(i) 

(a) Myler v. Fitzpatrick, 6 Mad., (e) Messeena v. Can, L. R., 9 Eq., 

360 ; Maw v. Pearson, 28 Beav., 196 ; 260 ; Lee v. Sanlcey, L R., 15 Eq,, 

Re Spencer, 51 L. J. N. S. Ch., 271 ; 204 ; Brazier ,-. Camp, 63 L. J. Q. B., 

Brinsdenv. Williams {1894:}, S Ch., 185; 257. 

Coleman V. Bucks and Oxon Bk. (1891), { f) Doyhj v. Sherralt, 2 Eq.Ca-s. Ahi., 

2 Ch., 243; also Lister v. Stubbes, 45 742 D. ; Luke v. Sontii Kensington 

Ch. D. (C. A.), 1 ; Attometj-General v. Hotel Company, 7 Ch. D., 789; 11 Ch. 

Earl of Chesterfield, 18 Beav., 696 ; D. (C. A.), 121. 

Chidambaram v. Pichappa, 30 Mad. , (jr) See Walker » . Symonds, 3 

243, Swanst., 63 ; Hall v. Franck, 11 

(6) Eoberlson V. Armstroi}g,2S'BesiV., Beav., 519; Lee v. Sankey, L. R., 

123. 15 Eq., 204; Oloucjh v. BonA, 3 M. 

(c) Fyler v. Fyler, 3 Beav., 550 ; & C, 490 (a cheque signed by one 
Attorney-General v. Corporation of cannot be honored) ; Xcthiri Menon v. 
Leicester, 7 Beav., 176; Bridgman v. Gopalan Xair. 39 Stad , 597; Ponnam- 
Gill, 24 Beav., 382; Be Barney (1892), bala v. Muthu (1916), 1 -M. W. N., 181. 

2 Ch., 265 ; Midgley v. Midgley (1893), (D?lega*-ion tn the iiianag;r.g trustee is 

3 Ch , C. A , 282 ; Mara v. Browne not improper). Sc-o also Ramhabu v. 
(1896), 1 Ch., C. A., 199. CommMee of Rameshur, 1 B .m. L. R., 

(d) Ex parte Grifin, 2 Gl. & J., 116 ; 667. 

Re Lever, 76 L. T. N. S , 71 ; Shaik (h) Townley v. Sherborne. Bridg., 35 ; 

Dawood V. Hussain Saiba, 17 Mad , Koyittal v. Attimnna, 36 M. L. J. 295. 

212; Abbikesava V. Kesavan, 2\ JI. L. ((') Altonieii-General v. Brickiale, S 

J., 178; Narendra Nalh v. Atul Chan- Beav., 223. 
dra, 11 I. C, 837. 



Lee. IX.] JOINT NATURE OP OFFICE. 247 



One of several executors may, on the insolvency 
of a debtor to the estate, prove the debt ; but one of {nsdvency. 
several trustees cannot prove without the order of the 
Court, (a) 

There is an exception to the general rule that all trustees must 
join in executing the ofSce, in the case of a trust of a public Exception 
character. There the act of the majority is to be considered to rule in 
the act of the whole body. (6) The majority of course have '^^^f,."*. 
no right to deal with the trust-property otherwise than P" "^ ^^^ ' 
according to the true construction of the deed of trust.(c) 

In the absence of express statutory authority, a majority 
cannot pass the legal estate, which is vested in all.(<i) 

Where a special power is given to trustees, it cannot be exercised 
by the majority only, but all must join ; if the settlement, 
for instance, declares that, on the death or resignation of a pg^er. 
trustee, the surviving or continuing trustees shall appoint a 
successor, it is apprehended that the appointment of the new 
trustee must be the joint act of all the surviving or continuing 
trustees, (e) 

The Limitation Act(/ ) provides, that " nothing in ss. 19 and 
20 renders one of several joint executors or mortgagees 
chargeable by reason only of a written acknowledgment ied~me^t 
signed, or of a payment made by, or by the agent of, any 
other or others of them." This corresponds with the English 
law.(5f) 

" As co-trustees are a joint body, the Court requires them, 
unless under special circumstances, to defend a suit jointly ; cogt- r 
and if they sever, the extra costs thereby occasioned must acting 
be borne by the defaulting party. (A) It is conceived that independ- 
this rule, so strictly observed in Court, must not be lost ^"*'y- 
sight of in transactions out of Court, and that co-trustees are 
bound, unless they can show good reason to the contrary, to act 



(a) Ex parte Smith, 1 Deac, 391. Snuthwich, 1 W. N., 196. As to stocii 

(bi Wilkinson v. Malin, 2 Tyr., 544 ; in the n ime of trustees, see Lewin, 12th 

Tourujer v. Welham, 3 Swanst., 180 ; Edn., 302. 

In re White'cy. (1910), ICh., 600. (/) Act IX of 1908, s. 21. See In re 

Terirnahv. Uiah,&Ma,d. 270; Natem Ganapali Pillai (1912), 1 M. W. N., 

V. Qmapati, 14 Mad. 103 ; see aho 181 : 13 I. C , 186. 

Trgunmav (Jjjjato, (1917) M. W. N. (g) See Richardson v. Youncje, L. E., 

595. 6Ch.,478;i?cJ/acdonrfd(1897), 2 Ch., 

(c) Wardv. IIipwdl,^GiS,54n. 181. See Bhogilal v. Amrithl, 17 

(d) Re Ebsworth and Tidys' Con- Bom., 173; Dharman v. Balmukund, 
tract, 42 Ch. D. (C. A.), 23. See 18 All., 458 ; C/)w«h): v. Hm/I-mto. SA, L. 
Charitable Trusts Act, 1869 (.32 & 33 J., 605. 

Vic. c, 110), ss. 12 & 13. (h) Re Isaac (1897), 1 Ch. (C. A.), 

(e) Re Congregational Church, 251. ^ 



248 JOINT NATURE OP OFFICE. [LeC. IX. 

by the same solicitor and the same counsel. It would be a 
strange anomaly if four trustees were allowed only one solicitor 
and one counsel in Court, and four separate solicitors and four 
separate counsel out of Court. Every trustee should be prepared 
to act in harmony with his co-trustees, or he should not accept 
the office. It may be said that as each trustee is responsible for 
the due administration of the trust, he ought to be at liberty to 
employ a professional adviser of his own choosing, but this 
argument would, a fortiori, apply to so important a matter as 
the defence of a suit, and yet there the Court pays no attention 
to it. "(a) There may yet be circumstances where severance 
must be allowed. If for instance one of the trustees is a defaulter 
or a debtor to the estate, the other trustees will have good cause 
to sever from him. (6) 

We have seen that the Court will not, as a rule, interfere 
with a discretionary power reposed in trustees. (c) 
Art T 49"^ ^ -^^^ *^^ Court has a controlUng power over all 
trustees(<i), and will interfere when the discretion is 
mischievously and ruinously exercised, as by leaving the trust- fund 
outstanding on hazardous securities(e), or where it is corruptly 
exercised(/ ), or not exercised in good ia.it'h{g), or where the 
trustees misbehave(A), or decline to exercise the discretion, (t) 
In this last case the Court will not, as a matter of course, exercise 
the discretion with which the trustees are invested, but will follow 
its own established and known rules, unless the intention of the 
testator plainly appears to exclude such a mode of proceeding. ( j ) 
Where a case has been shown for bringing the trustees before the 
Court, the Court, though it will not control the discretion of the 
trustees, will still, to use the words of Lord Hardwicke, " keep a 
hand over them. "(A) This principle of control by Court extends 
to public trusts and if a temple Committee appointed under 
Act XX of 1863 fails to exercise its powers in good faith, a Civil 
Court of Original Jurisdiction can interfere. (?) 



(o) Lewin, 12th Edn., 292. {h) Attorney-General v. Glegg, Ambl., 

(6) Smith V. Dale, 18 Ch. D., 516 ; 584 ; Maddison y. Andrew, 1 Ves., 59 ; 

see Williams v. Wight [1890], W. Willis v. Childe, 13 Beav., 117. 

N., 50. ((■) Gude v. Worthington, 3 DeG. & 

(c) See page 177 ante. Sm , 389 ; In re Sanderson's Trusts, 3 

(d) In re Hodges, Davey v. Ward, K. & J., 497 ; Bennet v. Wi/ndham, 23 
L. R., 7 Ch. Div., 761. Beav., 528 ; Palmer v. Newell, 25 L. T. 

(e) De Manneville v. Crompton, 1 V. N. S., 892. 

& B., 359 ; Lee v. Young, 2 Y. & C. C. ( J ) Prendergast v. Prendergast. 3 H. 

C, 532. L, C, 197. 

(/) Potter V. Chapman, Ambl, 99; (J) Attorney-General v. Governors of 

French v. Davidson, 3 Madd., 402 ; Harrow School, 2 Ves., 551. 

Talbot V. Marshfield, h. R., 3 Ch., 622 ; (1) ShaikDawood v. Hussain Saiba, 

Tfeicfej-v. iCe)/, L. R., 8Eq., 408. 17 Mad., 212 ; (?a»apa(i v. Sri Veda- 

(g) Byam v. Byam, 19 Beav., 65 ; vyasa, 29 Mad., 534 
Re Wilkes's Charily, 3 Mac. & G., 440. 



Lee. IX.] REMUNERATION OP TRUSTEE. 249 

The Court may, if necessary, interfere by injunction. (a) If 
the act complained of would be irremediable, the Court . . 
will interfere as a matter of course. (6) 

A trustee, as such, has no right to any remuneration for his 
trouble, skill, or loss of time in executing the trust, for 
the office, in the absence of any express stipulations ^^^^ f^^ 
between the author of the trust and the trustee, is a purely trouble, 
honorary one. Accordingly the Indian Trusts Act says Indian 
that " in the absence of express directions to the contrary g'^so.^ '^ ' 
contained in the instrument of trust or of a contract to 
the contrary entered into with the beneficiary or the Court at 
the time of accepting the trust, a trustee has no right to remuner- 
ation for bis trouble, skill and loss of time in executing the 
trust." 

The leading case on this point is Robinson v. Pett.{c) 
There Lord Talbot, L. C, said : " It is an established rule, that a 
trustee, executor, or administrator shall have no allowance for 
his care and trouble ; the reason of which seems to be, for that, 
on these pretences if allowed, the trust-estate might be loaded and 
rendered of little value : besides, the great difficulty there might 
be in settling and adjusting the quantum of such allowance, especi- 
ally as one man's time may be more valuable than that of another ; 
and there can be no hardship in this respect upon any trustee who 
may choose whether he will accept the trust or not." 

" The reason of the rule," said Lord Cottenham(tZ), " is well 
stated in Robinson v. Pett. It is not because the trust-estate is 
in any particular case charged with more than it might otherwise 
have to bear, but that the principle, if allowed, would lead to such 
consequences in general. "(e) " The true ground, however," says 
Mr. Lewin(/ ), " is, that if the trustee were allowed to perform the 
duties of the office, and to claim compensation for his services, his 
interest would be opposed to his duty, and as a matter of prudence, 
the Court would not allow a trustee or executor to place himself 
in such a false position. "(gr) 

The rule extends to all persons who acquire a fiduciary 
■character. (^) Thus, an agent who becomes executor is not 

(a) Balls V. Strutt, 1 Hare, 146 ; Ayliffe v. Murray, 2 Atk., 58 ; Charity 

M'FaMen v. Jenkyns, 1 Ph., 153; Corporation v. Sutton, ib., 406; Re 

3ehvyn v.- Oarfte, 38 Ch.X>.{C. A.),273 ; Ormaby, 1 B. & B., 189. 

Barker V. lUi'ngworth {1908), 2 Ch., 20. (d) Moore v. Frowd, S My. & Cr., 50. 

(6) In re Chertsey Market, 6 Price, (e) See also Hamilton v. Wright, 

279 ; and see Kerr on Injunctions, 2nd 9 0. &F., 111. 

Edn., 461 and Civil Procedure Code, (/) ]2th Edn., 780. 

<Aot V of 1908), Or. 39 ; Specific Relief (g) And see Burton v. Wookey, 6 

Act (I of 1877), s. 64. Madd., 368. 

(c) 3 P. Wras., 132. See also (h) See Docker v. Sornes, 2 M. & K., 

Brocksopp V. Barnen, 5 Madd., 90 ; 665. 



250 REMUNERATION OF TRUSTEE. [LeC. IX. 

entitled to charge commission on business done subsequently to 
the testator's death(a), nor if he sells as trustee will he be allowed 
more than expenses out of pocket. (6) So an auctioneer, who is 
also mortgagee, cannot charge commission for selling the mortgaged 
property(c) ; and it is a general rule that a mortgagee shall not be 
allowed to charge for receiving the rents of the mortgaged property 
personally, (c?) A receiver is not entitled to compensation for 
trouble in doing acts which have not been o:deed.(e) Nor is 
a surviving partner(/) or the committee of a lunatic's estate 
entitled to any remuneration for his trouble. Where any 
allowance is made, it is not for his sake, but for the benefit of 
the esbate, as where rents cannot be effectually collected by the 
committee without assistance, (g-) 

If a surviving partner carries on the business of the partnership 

retaining the deceased partner's capital in the concern, 

budnesf he will be considered as a constructive trustee, and will 

have to account for the profits ; but proper allowances 

will be made for the management of the business(/t), and the 

amount of the allowances may be fixed by the Court without an 

enquiry, (t) 

If, however, the surviving partner is an express trustee or 

an executor, he will not, as a general rule, in the absence of 

Surviving any direct stipulation, be entitled to an allowance for carry- 

^rultee. ^"8 °^ ^^^ business(j), or to make any charge for 

trouble or loss of time, although great advantages may have 

accrued to his cestuis qus trustent ; as where he has carried on a 

trade or business with great personal trouble, and at a great 

sacrifice of time, he will not be allowed to charge for more than 

out-of-pocket expenses : and even settled accounts upon the 

footing of such charges will be set aside. (A;) 

A solicitor who sustains the character of trustee will 

trustee"^ not, unless there be an agreement for the purpose(Z), be 

permitted to charge for his time, trouble or attendance 

(a) Sheriff V. Axe, iRviss., 3S. {h) Crawskay v. Collins, 15 Ves. , 

(6) Kirkmanv. Booth, 11 Beav.,273; 225; Bwwn v. De Tastet, Jac, 284 ; 

Arnold V. Qarner, 2 Ph.., 2Zl. Wedderburn r. Wedderbwn. 22 Beav., 

(c) MattMeon v. Clarke, 3 Drew., 3. 117 ; Brown v. Litton, 1 P. W., 140. 

(d) Bonithon v. Hockmore, 1 Vern., See Indian Trusts Act, ss. 88, 95. 

316; Langstaffe v. Fenwick, 10 Ves., (i) Forster v. Ridley, 4. DeG. J. & S., 

405 ; Nicholson v. Tutin. 3 K. & J. , 1 59 ; 452. 

Re WalUs, 25 Q. B. D. (C. A.). 176; (j) Burden v. Burden. I V. &B., 170; 

Stone V. Lickorish (1891), 2 Ch , 363 Brocksopp v. Barnes, 5 Madd , 90; 

(case of costs of solicitor-mortgagee). Stocken v. Dawson, 6 Beav., 371. 

(e) In re Ormsby, 1 B. & B., 189. (k) Brocksopp v. Banies, 5 Madd., 90, 
(/) Stocken v. Dawson, 6 Beav., Ayliffe v. Murray, 2 Atlc, 58; Barrett 

371 ; Burden v. Burden, IV. & B , 170. v. Hartley, L. R , 2 Eq., 789. 

{g) Re Walker, 2 Pliillips, 630 ; Re. {I) In re Sherwood, 3 Beav., 338 ; 

Westbrooke, ib., 631 ; Anon., 10 Ves., Douglas v. Archbxitt, 2 DeG. & J., 

103. • 148. 



Lee. IX.] EEMUNEEATION OF TRUSTEE. 251 

but only for his actual disbursements. («) " It \yould," said 
Lord Lyndhurst, "be placing his interest at variance with the 
duties he has to discharge. It is said, the bill may be taxed, but 
that would not be a sufficient check : the estate has a right not 
only to the protection of the taxing officer, but also to the 
vigilance and guardianship of the executor or trustee : a trustee 
placed in the situation of a solicitor might, if allowed to perform 
the duties of a solicitor and to be paid for them, find it very often 
proper to institute and carry on legal proceedings, which he would 
not do if he were to derive no emolument from them himself, and 
if he were to employ another person. "(6) And the rule is not 
restricted to cases of express trusts, but applies to the case of 
an executor or trustee, though there be no expres3 trust. (c) 

When a solicitor has liberty to charge for his professional 
services, he can only charge for services strictly professional, 
and not for matters which an executor ought to have done Extent of 
without the intervention of a solicitor, such as attendance allowed, 
to pay premiums on policies, attending at the bank to 
make transfers, attendances on auctioneers, legatees, and credi- 
tors, (rf) The rule applies even where the business is done by the 
solicitor's partner, who is not a trustee, (e) If, however, the 
business is done exclusively by the partner and he alone receives 
the costs to the exclusion of the trustee-partner, the charge will be 
anowed(/ ) ; and so will the costs of an agent, also a solicitor, for 
professional work.(5f) In one case it was held, that a solicitor, a 
trustee, might act for his cestuis que trustent or himself, and his 
co-trustees or cestuis que trustent, provided the costs were not 
increased thereby. (A) But this case has been since disapproved 
of by the House of Lords in Manson v. BaiUie(i), where Lord 
Cranworth, C, said, that " the true principle is, that each trustee 
should be a check and control on each and all of the co-trustees — 
a principle which is placed in danger by the allowance of a 
pecuniary profit." 

(a) Gmnley v. Wood,Z J. &La.t , 678; N., 209. 
Mom-BT. Frowd, 3M. & Ci., 45; Fraser (e) Collins v. Cary, 2 Beav., 129; 

r. Palmer, 4: Y. & C, 515; Bwughton Christopher v. White, 10 Beav., 523; 

V. Bra«9'^to«, 5 D. M. G , 160. Lincoln v. Windsor, 9 Hare, 158: 

(6) New V. Jones, 9 Jarm. Free, Lyon v. Baker, 5 DeG. & Sm., 022 ; 

338; Clarkson v. Robinson (1900), 2 Cradock v. Piper, 1 Mac. & G., 664. 

Ch., 722. Ee Corsellis, 3i Ch. D. (C. A.), 675; 

(c) Pollard v. Doyle, 1 Dr. & Sm , Ee Doody (1898), 1 Ch. (C. A.). 129. 
319. (/) Clarke v. Garlon, 7 Juv., N. S, 

(d) Harbin v. Darby, 28 Beav., 325. 4Ai ; Mackintosh y. Xobinmoney Dosset, 
Re Chappie, 27 Ch. D., 584 ; Ee Fish 2 Ind. Jur., 162 ; Eyre v. Wynn-Mac- 
(1893), 2 Ch, 413 (but not so where kenzie (ISQi), 1 Ch., 2] S ; Re Doody. 
" all proper and reasonable charges " supra. 

were authorised in the will. Re Ames, (g) Burge v. Brutton, 2 Hare, 373. 

23 Clh. D., 72). See also Clarkson v. (h) Cradock y. Piper, 1 JI.io. & G. 

Kobinson (1900), 2 Ch., 722; Re 664. 
Chalender and Herington [1906], W. (i) 2 Macq., 80. 



252 REMUNERATION OF TRUSTEE. [LCC. IX. 

And in another case(a), Lord Cranworth said :■ " The rule 
applicable to the subject has been treated at the bar, as if it were 
sufficiently enunciated, by saying, that a trustee shall not be able 
to make a profit of his trust ; but that is not stating it so widely 
as it ought to be stated. The rule really is, that no one who has a 
duty to perform shall place himself in a situation to have his inter- 
ests conflicting with that duty, and a case for the application of 
the rule is that of a trustee himself doing acts which he might 
employ others to perform, and taking payment in some way for 
doing them. As the trustee might make the payment to others, 
this Court says, he shall not make it to himself ; and it says the 
same in the case of agents, where they may employ others under 
them. The good sense of the rule is obvious, because it is one of 
the duties of a trustee to take care that no improper charges are 
made by persons employed for the estate." 

In In the Matter of the Port Canning Land Co.(b) Phear, J., 
drew a distinction between the case of a trustee and a director of a 
public company, and allowed the claim of the partner of one of the 
directors who did work for the company as a solicitor, there being 
nothing to show that he had not been duly appointed by the 
directors. 

A solicitor, who is also a trustee, who invests trust-money on 
a mortgage, and is employed as the mortgagor's solicitor, and is 
paid by him, is not chargeable at the suit of the cestui que trust 
with the profit thus made.(c) If the solicitor is also executor, 
he cannot postpone probate and in the meantime' charge for his 
services to his co-executor for the testators' estate. ((^) 

A solicitor-trustee, who acts for himself in a suit, will be 
^.Qgjg entitled to his costs against parties who unsuccessfully 

attempt to set aside the trust-deed, (e) 

Securities given to a solicitor-trustee to cover costs to which 
he would not be entitled, will be set aside even as against a pur- 
chaser for value who had notice. (/) 

Where a trustee is appointed by the Court, and the nature of 
Trustee '''^e trust is such that he is fairly entitled to compensation 

appointed he should take care to arrange for his remuneration before 

hy Court. }^q accepts the office, (^f) In Marshall v. Holloway(h), 



(a) Broughton v. BrougUon, 5 D. JI. 1119; see York v. Brown, 1 Coll., 260. 

G., 164. (/) GomUy v. Wood, 3 J. & Lat., 

(6) 6 B. L. R,, 278. 078. 

(c) Whitney v. Smith, L. R., 4 Ch., (g) Brochsop}) v. Barnes, 5 Madd., 

oI3. 90 ; Morison v. Morison, 4 M. & C, 

{d) Re Barber, 34 Ch. D., 77 ; Robin- 215 ; Newport v. Bury, 23 Beav., 30 ; Re 

sow V. Pett, 3 P. W., 249. Freemaifs Settlement, 37 Ch. D., 148. 

(e) Pince v. Beattie, 9 Jiir., N. S., (A) 2 Swanst., 453. 



Lee. IX.J REMUNERATION OF TRUSTEE. 253 

the decree, after reciting that the nature and circumstances of 
the estate of the testator required the application of a great 
proportion of time by and on the part of the trustees for the 
due execution of the trusts of his will in regard to his estate, and 
that they could not undertake to continue the execution of the 
trusts without the aid and assistance of ^ as a co-trustee, he 
having during the life of the testator had the principal and 
confidential management thereof, and being better acquainted 
therewith than any other person, and that therefore it would be 
for the benefit of the said testator's estate that he should 
continue to be a trustee thereof, and the said A alleging that due 
attention to the affairs and concerns of the said testator would 
require so much of his time and attention as would be greatly 
prejudicial to his other pursuits and concerns in business, and 
therefore that he would not have undertaken to act therein, but 
under the assurance that an application would be made to the 
Court to authorize the allowance and payment of a reasonable 
compensation out of the testator's estate for such labour and 
time, and that he could not continue to act therein without such 
reasonable allowance being made to him, ordered a reference to 
settle a reasonable allowance to be made to A out of the testator's 
estate for his time, pains, and trouble in the execution of the 
trusts. 

The Court will not allow a trustee to make professional charges 
for professional business done by him for the trust, unless, pi-^fes 
of course, there is express authority given by the settlor, sional 
for, to do so would be to place a person, having a duty charges not 
conflicting with his interest, in the position of having to ^^^°^^^- 
make out his own bill against himself, leaving any error which 
might occur to be settled and set right at some future occasion ; 
but the Court will only allow him a salary, (a) 

A cestui que trust is not estopped by a settled account with a 
release to his trustee, a solicitor, if he had no independent i 

legal advice(6) ; but otherwise if he had.(c) To entitle ac*ount_ 
him to re-open the accounts, he must make out a prima 
facie case of error in the settlement. (cZ) 

The author of the trust himself may, of course, direct Remunera- 
a salary or other payment, or costs as between solicitor ^v auth^"^ 
and client, to be made to the trustee, to which he would of trust. 



(a) Bainbrigge v. Blair, 8 Beav., mortgagee-solicitor, see <S(o?ie r. ii'c/.o- 

o95 ; Re Freeman's Settlement, 37 Cii. risk (1891), 2 Ch., 363 ; Cheese v. Keen, 

D., 148. (1908), 1 Ch,, 245. 

(6) Todd V. Wilson, 9 Beav., 486 ; (c) Stanes v. Parker, 9 Bear., 385 ; 

Re Fish (1893), 2 Ch. (G. A.), 413 ; Re Re WycJie. 11 Beav., 209. 

Webb (1894), 1 Ch. (C. A.), 73. For (d) Re Webb (1894), 2 Ch. 363. 



254 REMUNERATION OF TRUSTEE. [LeC. IX. 

not be entitled without such direction(a) ; and if the precise 
amount is not fixed, an enquiry will be directed to ascertain what 
will be a proper remuneration. (6) 

And where the instrument of trust does not make any provision 

_ J J. for the remuneration of the trustees, they may, neverthe- 

f or remu- l^ss, contract with the cestuis que trustent, if the latter 

neration are competent to contract, for an allowance for time and 

^'*/^^^^'"^ trouble expended in the administration of the trust, (c) 

In Ayliffe v. Murrai/{d), Lord Hardwicke said : " Whether 

upon general grounds a trustee may make an agreement with his 

cestui que trust for an extraordinary allowance, over and above 

what he is allowed by the terms of the trust, I think there may 

be cases where this Court would establish such agreements, but at 

the same time would be extremely cautious and wary in doing it. 

In general, this Court looks upon trusts as honorary, and a burthen 

upon the honour and conscience of the person intrusted, and not 

undertaken upon mercenary views ; and there is a strong reason 

too against allowing anything beyond the terms of the trust, because 

it gives an undue advantage to a trustee to distress a cestui que 

trust, and therefore this Court has always held a strict hand upon 

trustees in this particular. If a trustee comes in a fair and open 

manner, and tells the cestui que trust that he will not act in such 

a troublesome and burthensome office, unless the cestui que trust 

will give him a further compensation, over and above the terms of 

the trust, and it is contracted for between them, I will not say 

this Court will set it aside, though there is no instance where they 

have confirmed such a bargain." 

The contract should in its terms explain the arrangement, 
and if the trustee is a solicitor, the cestui que trust should have 
independent professional advice. (e) 

If the trustee fail from any cause to perform his part of the 
contract, the charges will not be allowed. (/) 

If a gift is coupled with a duty, the duty must be performed 

in order to entitle the donee to claim the gift. Thus, if a 

^'fh'dT'^'' bequest is given to an executor as remuneration for his 

^' ' trouble, he will not be entitled to claim it unless he proves 

the mil and acts(5'), even though he is prevented by the act of 



(a) Robinson v. Petl, 1 P. Wins., (c) Douglas v. Archbuti, 2 Dl'G. &J., 

132 ; Webb v. Earl of Shaftesbury, 7 148 ; Re Sherwood, 3 Beav., 338. 

Ves., 480 ; Baker v. Martin, 8 Sim., 25 ; (d) 2 Atk., 58. 

Douglas v. ArchbiUt, 2 DeG. & J., (c) Moore v. Frowd, 3 M. & Cr., 46. 

148. (/) Oould V. Fleetwood, 3 P. Wms., 

(5) Ellison V. Airey, 1 Vcs., ll.j; 251, «. (a). 

WiUis V. Kibble, 1 Beav., 559 ; Jackson (g) Slaney v. Watney, L. R., 2 Eq., 

V. Hamilton, 3 3. & Lat., 702. 418. 



Lee. IX.] REMUNERATION OF TRUSTEE. 255 

God, as in the case of severe illness, from taking out probate, (a) 
So a gift of an annuity to a trustee, so long as he shall continue 
in the office of trustee, will determine on the cesser of active trusts 
by the payment of the whole of the trust-property to a person 
absolutely entitled, without a devolution of the office of trustee on 
any other person. (J>) 

Although a person acting in a fiduciary capacity may not 
charge anything for his trouble, yet he may, as we have 
already seen(c), employ paid agents. So if an executor o^lle^^ 
employs a solicitor to do business for him in the manage- 
ment of the testator's afiairs, he will be allowed what he pays the 
solicitor for such business((i), unless the business is such as he 
should have transacted himself, (e) 

If the accounts be complicated, and the executor or trustee 
take upon himself to adjust and settle them, although it may take 
up a great deal of his time and attention, the principle of equity 
is, that he cannot claim compensation ; but if he choose to save his 
own trouble by the employment of an accountant, he is entitled 
to charge the trust-estate with it under the head of expenses.(/) 

Curators appointed under Act XIX of 1841 are allowed to 
receive remuneration at such rate as the Judge shall think curators 
reasonable, but in no case exceeding 5 per cent, on the under Act 
personal property and on the annual profits of the real ^'^ °' 
property of the person whose estate has been taken charge ' '*'' 
of (s. 7). 

And the public curator and every other administrator to whom 
a certificate has been granted under s. 10 of Act XL of 1858 
is entitled to commission at a rate not exceeding 5 per q^ioVo ^^ ' 
cent, on the sums received and disbursed by him, or such 
other allowance to be paid out of the minor's estate as the Civil 
Court shall think fit (s. 24). 

Formerly, administrators in this country to the estates of 
persons dying abroad were allowed a commission of 5 per . . 

cent, upon receipts or payments. This practice, however, trator- 
was abolished in the Presidency of Bengal by Act VII of General. 
1849, and in the Presidencies of Madijas and Bombay by °**^'^1^' 
Act II of 1850 ; and it was provided by the Administrator- 
Generals' Act of 1874(5') that " no person other than the 



(as) Uanbury v. Spooner, 5 Beav., 587. 

630 ; jB« Hawkins Trusts, 33 Beav., (e) Harbin v. Darby, 28 Beav., 325. 

570. - (/) Lewin, 12th £dn., 786, citing 

(6) Hullv. 0/irisiian, li. R., 17 Eq.. Xew v. Jones, 9 Jarm. Prec, 33s ; 

546. Henderson v. Mclver, 3 Madd., 275. 

(c) Ante, p. 241. (?) II of 1874, s. 50. 

(d) Macnamara v. Jones, 2 Dick., 



256 TRUSTEE NOT TO PROFIT EEOM TRUST. [LeC. IX. 

Administrator-General acting ofEcially shall receive or retain any 
commission or agency charges for anything done as executor or 
administrator under any probate or letters of administration, or 
letters ad colligenda bona which have been granted by the Supreme 
Court or High Court at Fort William in Bengal since the passing, 
of Act No. VII of 1849, or by either of the Supreme or High 
Courts at Madras and Bombay since the passing of Act II of 
1850, or which shall have been or shall be granted by any Court 
of competent jurisdiction within the meaning of ss. 187 and 190' 
of the Indian Succession Act." It was therefore held to be illegal, 
for any person other than the Administrator-General to charge 
commission for administering estates. («) The Administrator- 
General's Act and the Official Trustees Act of 1913 provide for 
remuneration by way of percentage or otherwise [as the 
Government may prescribe. (6) 

"A trustee may not use or deal with the trust-property for 

his own profit or for any other purpose unconnected with the 

trust." It is an invariable rule that a trustee shall gain no benefit 

Trustee to himself by any act done by him as trustee, but that 

may not all his acts shall be for the benefit of his cestui que trust. 

Rt^t^ ^ h°' ^^^ ^ule was established in order to keep trustees in the 

office. line of their duty(c), so that wherever a trustee, or one 

Indian Trusts standing in the relation of a trustee, violates his duty. 

Act, s. SI. g^j^^ deals with the trust-estate for his own behoof, he must 

account to the cestui que trust for all the gain which he has made ; 

as where a profit is made by employing trust-money in buying 

and selling land, or stock, or in a commercial adventure, in all 

these cases the profit made by the transaction will not be allowed 

to go to the trustee, who has so applied the money, but to the 

cestui que trust, whose money has been so applied. In like manner, 

where a trustee or executor has used the fund committed to his 

care in stock speculations, though the loss, if any, must fall upon 

himself, yet for every farthing of profit he may make he will be 

accountable to the trust-estate. So, if he lay out the trust-money 

in a commercial adventure, as in buying or fitting out a vessel for 

a voyage, or put it in the trade of another person, from which he is 

to derive a certain stipulated profit, he must account for the 

profits received by the adventure or from the concern, (c?) And the 

rule applies to a mortgagee, who is not allowed to have more out of 



(a) In reOowie, 6 Cal, 77. See also Bennet v. Gaslight and Coke Co., 52 

Narayanv. Shajani, 22 Cal., 14. L. J. N. S. Ch., 98 ; Costa Bica Railway 

(6) Act III of 1913, s. 42 ; Act II of Co. v. Forwood (1901), I Ch. (C. A.), 

1913, 3. 19. 746. 

(c) O'Herlihy v. Hedges, 1 Sch. & (d) Docker v. Somes, 2 M. & K., 664 ; 

Lef., 126, per Lord Redesdale. See Burgess v. Wheate, 1 Eden , 177 ; 

also Ex parte Andrew, 2 Rose, 412 ; Middlelon v. Spicer, 1 Bro. C. C, 201 ; 

Hamilton v. Wright, 9 C. & F., Ill ; Ex parte Andrews, 2 Rose, 412. 



Lee. IX.] EMPLOYING TRUST-FUND IN TRADE. 257 

the mortgage-fund than his principal and interest, (a) It does not 
matter t£at the original trust-fund has not been impaired ; the 
rule is based on the principle that a trustee shall not be allowed 
to do an act which brings his private interests and his duty to the 
trust in conflict. (6) • 

So, if a trustee or executor employs trust-funds in his own 
business, he must account to his cestuis que trustent 
for all profits made by so employing the trust-funds (c), ^™s^'°^")f 
and he will be liable for all losses, (ci) "If," said Lord in trade. 
Cairns(e), " a partner in a trading firm dies, and if he 
constitutes one or more of his co-partners his executors, and if 
there is nothing special in the contract of co-partnership, and if 
the assets of the testator are not withdrawn from the co- 
partnership, but are left in it, and no liquidation is arrived at, 
no settlement of accounts come to, it is a trite and famihar rule 
in the Court of Chancery to hold, that the estate of that testator 
is, to all intents and purposes, entitled to the benefit of a share in 
the profits which are made in the trade after his death. And if 
this should happen, which is the principle of another class of 
cases, that the partnership articles have given the surviving 
partners an option to take to the interest of the testator on 
certain terms, at a certain price to be fixed by arrangement after 
the death of the testator, an option or power which may be 
accepted or refused, but which, if accepted and acted upon, 
must be acted upon according to the terms on which it is given — if, 
I say in a case of that kind, the surviving partners or one or more 
of them, being also executors of the deceased partner, are found 
not to have pursued exactly the terms of the power or option 
which has been given, there again the power or option to become 
purchasers of the interest of the testator after his death falls to the 
ground, and the partnership remains an unliquidated partnership, 
to a due share of the profits of which the estate of the testator will 
continue to be entitled until liquidation actually takes place. It is 
a rule without exception, that to authorize executors to carry on 
a trade with the property of their testator, there must be the most 
distinct and positive authority and direction given by the will 
itself for that purpose. "(/) 

(a) Gubbins v. Greed, 2 Sch. & Laf., C3,mmins v. Gummina, 8 Ir. Eq., 723 ; 

218 ; see also Baldwin v. Bannister, 3 Townend v. Townend, 1 Giff., 201 ; 

P. Wma.. 251 (A) ; Dobson v. Land 3 Jones v. Foxall, 15 Beav., 388 ; In re 

Hare, 220 ; Arnold v. Garner, 2 Ph., Davis (1902), 2 Ch., 314. Ranchode v. 

231 ; MaltUson v. Glarhe, 3 Drew., 3. Krishna [1911], 2 M. W. N., 271 ; 

(5) Hamilton v. Wright, 9 C. & F., 111. Visvanathan v. Brahmanathan, 34 I. C, 

(c) Oobind Deo v. Harnarain (1882), 900. For the effect of a clause 
A. W. N., 169. enabling such trade profits, see Re 

(d) Docker v. Somes, 2 M. & K., 655 ; Syhes (1909), 2 Ch. (C. A.), 241. 
Wedderbwrn v. Wedderburn, 2 Keen, (e) Tyse v. Foster, L. R., 7 H. L.,. 
722 ; Willett v. Blandford, 1 Hare, 253 ; 329. 

Parker v. Bloxam, 20 Beav., 295; (f) Kirkmanv. Booth, WBea/v.f^lZ. 

k, LT 17 



258 COMPOUNDING DEBTS. [LCC. IX. 

Upon these principles, if executors or trustees compound 

debts or mortgages, and buy them in for less than is due 

ingdebts " thereon, they will not be allowed to take the benefit of the 

or mort- purchase themselves ; but other creditors and legatees 

gages and ^ju jj^ye the advantage of it, and for want of them, the 

purchasing. jjenefit will go to the party entitled to the surplus ; whereas 

if one who acts for himself, and is not in the circumstances of an 

executor or trustee, buys in a mortgage or debt for less than is 

due, or for less than it is worth, he will be allowed all that is due 

thereon, (a) 

But the rule that a trustee cannot purchase applies only 
Purchase where the trustee purchases for his own benefit. If he 

for benefit buys for the benefit of his cestuis que trustent, and they 
of cestui repudiate the transaction, and it subsequently turns out 

que trust. ^^ ^^ profitable, they cannot claim the benefit. (6) 

Cestui au ^^ strongly do Courts of Equity object to allowing a 

trust cannot trustee to make any profit out of the trust-estate, that it 

give to lias been held that a cestui que trust cannot give a benefit 

trustee. to his trustee, (c) 

The rule that a trustee shall not be allowed to make a profit 
Rule applies ^^^ °^ *^® trust-property, applies not only to cases where 
to all fiduci- there is an express trust, and a certain fund is in the hands 
aryrela- of trustees to be applied in a particular manner for the 

*'°"^ benefit of particular persons, but to all cases in which per-^ 

sons stand in a fiduciary relation to each other. 

Thus, partners are bound to use the joint property for the 
benefit of all the owners, and one partner will not be allowed 
to make profit to himself out of the partnership transac- 
tions, (d) And if, after a partnership has terminated, whatever the 
cause of the termination may be, one partner carries on the partner- 
ship business and retains the share of the outgoing partner in the 
business, he must account for the profits which he makes by the 
money he has retained(e), subject to " just allowances " for special 



(a) Bobinson v. Pett, 3 P. Wms., 251 218 ; Bentley v. Craven, 18 Beav., 75 ; 

(A) ; Anon., 1 Salk., 155 ; Darcy v. Hall, Parsons v. Hayward, 31 Beav., 199. 

1 Veru., 49 ; Ex parte Lacey, 6 Ves., (e) Crawshay v. Collins, 15 Ves., 
625 ; Fosbroohe v. Balguy, 1 M. & K., 218 ; Broiim v. De Taslet, Jac, 284 ; 
226 ; Podley v. Quilter, 2 DeG. & J., Wedderbum v. Wedderbum, 2 Keen, 
327 ; Mackintosh v. Nobinmoney Dossee, 722 ; Flocklon v. Bunning, L. R., 8 Ch., 

2 Ind. Jur., 162 ; Macleod v. Jones, 24 323 n. (6) ; RatrUal Thakursidas v. 
Ch. D. (C. A.), 289. Lakhmichand Muniram, 1 B. H. C. R., 

(6) Barwell v. Barwell, 34 Beav., Apx. x. The Lord Provost, etc., of 

371. Edinburgh, v. The Lord Advocate, 4 

(c) Vaughton v. Noble, 30 Beav., 39. App. Gas., 823. 

(d) Crawshay v. Collins, 15 Ves., 



lee. IX.] pARTJsrERs. 259 

skill, industry, or other matters, by which profit ia gained apart 
from the use of capital. (a) 

In Knox v. Gye{b) a difference of opinion arose as to whether 
a surviving partner was a trustee for the representatives of a 
deceased partner. Lord Westhury said : " There is nothing 
fiduciary between the surviving partner and the dead partner's 
representatives, except that they may respectively sue each other in 
equity. There are certain legal rights and duties which attach to 
them ; but it is a mistake to apply the word ' trust ' to the legal 
relation which is thereby created." Lord Hatherley, on the other 
hand, said : "I thought it was an elementary principle of law 
that the partnership, which at law survives to the surviving partner, 
which carries to him at law the whole interest in the partnership 
assets, which, treating him as a joint tenant, vests the whole of the 
partnership estates in him, was always subject to the doctrine of 
a Court of Equity ; that, in equity, the interest of a partner in the 
partnership is that of a tenancy in common as between the two 
partners : so that the executors of a deceased partner have an 
interest in those assets which the surviving partner alone can get 
at, and that the surviving partner alone having a legal interest in 
the property, there arises, necessarily, a right, as between the 
executors of the deceased partner and him, to insist upon his 
holding those assets, which he so collects, according to the partner- 
ship interest, or subject to the share which the executors of the 
deceased partner, in right of their testator, are entitled to claim, 
so much so, that it is trite law that a surviving partner cannot 
make use of the assets of a deceased partner without being account- 
■ahle for the use he has made of them. The executors of the deceased 
partner have a right to a sale of every portion of the partnership 
property. So completely are they held to be in a fiduciary position, 
so completely are the assets, including the plant or houses, the 
machinery or stock-in-trade, or whatever the description of property 
may be that comes into the hands of the surviving partner by right 
of his survivorship at law, and which are all vested in that surviving 
partner by right of his survivorship at law, held to be property in 
all of which, whether they are chattels of the partnership, or estates 
of the partnership, the executors of a deceased partner have an 
interest commensurate with the extent 6t the share of their testator. 
They have a right, therefore, to have that property so disposed of, 
that it may be applied under the direction of a Court of Equity 
according to the equitable rights between the partners." 

" The Indian legislature in Chapter IX of the Indian Trusts 
Act of 1882 has recognised the objection of Lord Westbury to 

(o) Brovm v. De Tastet, Jac, 284; (b) L. R., 5*11. L., 656; see Thiruven- 

Willett V. Slandford, 1 Hare, 253 ; gada v. Satagopa, 20 M. L. J., 987. 
Docker \. Somes, 2 M. & K., 662. 



260 



GENDRAL EXTENT OP RULE. 



[Lec. IX. 



classing surviving partners with trustees, but has in ss. 80, 88 and 
95, clearly recognised that they are subject to obligations in the 
nature of a trust, and classed them with persons bound in a fiduciary 
character to protect the interests of others. 

" From illustration (/) to s. 88 it would appear that the section 
demands from a surviving partner the same uberrima fides as 
regards the interests of a deceased partner as was due before 
death had dissolved the partnership, so far as the profits 
arising from the capital of the deceased are concerned. For 
these he must account to the legal representative, though no 
doubt when he has done so, there is nothing then to prevent 
him from receiving the assets in purchase or loan from such 
representative. But so long as he is under that liability to 
accoimt, he is evidently within the meaning of the phrase which 
classes him with other persons bound in a fiduciary character 
to protect the interests of another."(a) 

Purchasing There is nothing, however, which prevents a surviving 

deceased partner from purchasing the share of a deceased partner 

partner. from his representatives. (6) 

The principle that a person holding a fiduciary position shall 

not obtain for himself a benefit from the trust-funds(c) , 

of rule"^^^ extends to an agent becoming a trustee or executor((^ ; 

sohcitor-mortgagees(e), guardians(/) (who are trustees of such 

property only as comes to their hands) (^) ; directors of companies, 

who cannot be allowed to make a profit out of work done by them 

for the company beyond their regular salary as directors(fe), unless 



(a) Per Batty J. in Hasanali v. 
Esmailji, 9 Bom. L. E,., 606 (631). 

(6) Chambers v. Howell, 11 Beav., 6. 
For purchases by one partner in execu- 
tion against another, see Perens v. 
Johnson, 3 Sm. & G., 419. As to duty 
in private sales, see Law v. Law 
(1905), 1 Clj. (C. A.), 140. As to the 
effect of an heir or devisee purchasing 
an incumbrance, see Lewin, 12th Edn., 
310. 

(c) Docker v. Somes, 2 M. &,K., 
665. 

{d) Sheriff v. Axe, 4 Russ., 38; 
Morret v. Pashe, 2 Atk., 54 ; Grant v. 
Gold Exploration, etc, , Syndicate (1900), 
1 Q. B. (C. A. ), 283 ; see Eamasami v. 
Karuppan, 29 M. L. J., 551. 

(e) Se Doody {1893), 1 Ch., 129; Byre 
V. Wynn-Mackenzie (1894), 1 Ch., 218 ; 
Day V. Kelland (1900), 2 Ch. (C. A.), 
305 ; Cheese v. Keen (1908), 1 Ch., 245. 
For the present English law, see the 
Mortgagees' Legal Costs Act, 1895 (58 
& 59 Vic. 0. 25, ss. 2, 3). 



(/) Powdl V. Glo'ber, 3 P. Wms., 
251 («). 

{g) Sleeman v. Wilson, L. E., 13 Eq., 
41. 

(h) Great Luxetnbourg Railway Com 
P'j,ny V. Magnay, 25 Beav., 586 ; Impe- 
rial Merchaniile Credit Association v. 
Coleman, h. R., 6 Ch., 558; L. R., 
6 H. L., 189 ; Parker v. M'Kenna, L. 
R., 10 Ch., 96 ; Inre Imperial Land Co. 
of Marseilles, Ex parte Larking, L. R., 
4 Ch. Div., 566 ; Be Lands Allotment 
Company (1894), ] Ch. (C. A.), 616 ; 
Shaw V. Holland (1900), 2 Ch. (C. A.), 
305 ; Costa Rica Railway Co. v. Forwood 
(1901), 1 Ch. (C. A.), 746; Re Lady 
Forest Gold Mining Co. (1901), 1 Ch., 
582. But directors and liquidators 
are not to be deemed trustees for 
creditors or contributories ; Percival v. 
Wright (1902), 2 Ch., 421 ; Re Wood's 
Ships Woodite Co., 62 L. T. N. .S, 760 ; 
Knowles v. Scott (1891), 1 Ch., 717; 
Bae howeveT Pulsford v. Deveni^h (iQOZ)^ 
2 Ch., 625. 



Lee. IX.] RETIRING FOR CONSIDERATION. 261 

the artides of association of the company expressly stipulate that 
they may do work for the company in their private capacity, and 
receive remuneration for the work so done, (a) And the rule 
.applies to the officers of companies(6), or promoters(c), inspectors 
under creditor's deeds(rf) ; and it has been held to extend to the 
mayor of a corporation, (e) So a broker(/), or auctioneer(gr), who 
assumes a fiduciary position, cannot charge commission for selling 
the trust-property unless expressly authorized to do so by the will. (A) 
In Morison v. Morison{i) an executor and trustee was appointed 
a consignee, with the usual profits, by the Court, the appointment 
being for the benefit of the estate. And trustees who are bankers 
cannot advance money to the trust at compound interest, although 
such a course of procedure may be usual ; but can only charge 
simple interest, (j) A trustee will not, as a general rule(S), be 
appointed a receiver, the principle being that the person who 
-accepts the office of trustee engages to do the whole duty of a 
receiver without emolument. And if a receiver is appointed, the 
Court looks to the trustee to examine with an adverse eye, to see 
that the receiver does his duty. The consequence is, that a 
trustee is seldom appointed receiver, and only when he engages 
to act without emoluments. (?) 

Where a testator appointed two trustees as executors of hfs 
will, but by a codicil he excluded them and appointed two -j-justee 
•other persons, one of whom retired in consideration of a sum retiring for 
of money paid to him by one of the excluded trustees, and a considera- 
•exeeuted a deed appointing the excluded trustee to act as *'°"" 
trustee in his room, the Court directed the new trustee to be 
removed and the deed to be cancelled, declared the conveyance 
to be void, and directed the purchase-money to form part of 
■the assets, (m) 

If the person using the trust-fund is not a trustee. Extent of 
he will be liable to the cestui que trust only for the liability. 

(a) Imperial Merchantile Gr'AU Asso- (e) Bowes v. The City of Toronto, 11 

■ciation v. Coleman, L. R., 6 Oh., 558 ; Moore's P. C. C, 463. 

see In re The Port Canning Co., 6 B.L. (f) Arnold v. Gamer, 2 Phillips, 

R., 278. 231. 

(6) In re Morvah Mining Co., Mc- {g) Matthison y. Clarice, 3 Drew., 

s Case, L. R., 2 Ch. Div., 1. 3 ; Kirhman v. Booth, U Beav., 273. 



(c) New Sombrero Phosphate Co. v. {h) Douglas v. Archbutt, 2 DeG. & J., 
Erlanger, L. R., 5 Ch. Div., 73 ; Bagnall 148. 

T. Carlton, L. R., 6 Ch. Div., 371 ; Emma (i) 4 M. & Cr., 215. 

Silver Mining Co. v. Grant, 11 Ch. D. (j) CrossMllv. Bcnver,32Bea,y.,SS. 

(C. A.), 918 ; Ladywell Mining Co. v. (&) Re Brigndl (1892), 1 Ch., 59. 

Brookes, 34 Ch. D., 398 ; 35 Ch. D. (/) — v. Jolland, 8 Ves., 72 ; 

(C. A.), 400 ; Be Leeds and Hanley Sylces v. Hastings, 11 Ves., 363 ; Sutton 

Theatre of Varieties (1902), 2 Ch. v. Jones, 15 Ves., 584; Re Lloyd, 12 

(C. A.), 809. Ch. D. (C. A.), 447. 

(d) Chaplin v. Young (No. 2), 33 (m) Sugden v. Grassland, 3 Sm. & 
Beav., 414. G., 192. 



262 TRUSTEE EOE SALE. [LeC. IX.. 

principal and interest, but not for the profits ; as for example,, 
where a trustee lends the trust-fund to a trader to be used 
in his business, in this case there is no fiduciary relationship 
between the trader and the cestui que trust and the trader is- 
only liable as on an ordinary loan, (a) 

If property was vested in a trustee upon trust for a certain 

Failure of person and his heirs, and such person died without heirs 

heirs of and intestate, the trustee would then be entitled to hold 

ceshii qui the property for his own purposes. The author of the 

^^"^*- trust had parted with his interest, and there was no person 

claiming through the cestui que trust who had any right of suit 

against the trustee. Under these circumstances, the trustee could 

under the old law retain the property, not from any positive 

right in himself, but because there was no person entitled to 

oust him from possession. (6) If a cestui que trust of chattels, 

whether real or personal, dies intestate without leaving 

next-oflkin. ^^^ next-of-kin, the beneficial interest will not in this- 

case remain with the trustee, but, like all other bona 

vacantia, will vest in the Crown by the prerogative, (c) But under 

the Intestates Estates Act, if the death occurred after the 14th 

August, 1884, the law of escheat has a universal application. («?) 

In India the general prerogative of the Crown to all heirless 

property, subject however, to any trust or charge properly 

created, has always prevailed. (e) 

Trustee for The Indian Trusts Act enacts that " no trustee whose 

sale or his ^^^j j^ jg ^^ ggjj trust-property, and no agent employed 

not buy. by such trustee for the purpose of the sale, may, directly 

Indian Trusts or indirectly, buy the same or any interest therein, on 

Act, s. 52. jjjg Q^j^ account or as agent for a third person." 

This provision deals with another class of cases in which the 
principle, that a trustee shall not be allowed to do any act which 
brings his interest and his duty as a trustee in conflict, is 
applied, — namely, those cases where a trustee for the sale of 
trust-property himself becomes the purchaser. These cases, again, 
may be divided into two classes : (i) where the trustee attempts 
to purchase directly from himself; (ii) where the purchase is- 
effected by contract or agreement between the trustee and his- 
cestui que trust. 

(a) Stroud v. Cfwyer, 28 Beav., 130 ; (c) See Lewin, I2th Edn., 317. 

Towmnd v. Tomiend, 1 Gifi., 210 ; {d) 47 & 48 Vic, c. 71, s. 4. 

ison Y. Chapman, 4 DeG. M. (e) See Collector of MasuUpaiam v. 



& G., 154 ; Macdormld v. Richardson, Cavaly Venkata, 8 M. I. A., 500 ; Cavaly 

1 Gi£f., 81 ; SUde v. Ghaine (1908), Venkata v. Collector of MasuUpaiam, 

1 Ch. (C. A.), 522. 8M. I. A., 619; Gridhariv. Government 

{b) Burgess v. Wheate, 1 Eden, 177 ; of Bengal, 12 M. I. A., 448 ; Sonet v. 

Taylor v. Haygarth, 14 Sim., 8 ; see Mirza, 3 I. A., 92. 
Lewin, 12th Edn., 315. 



Lee. IX.] TRUSTEE PURCHASING TRUST-ESTATE. 263 

111 the first class of cases, the rule is absolute that a trustee 
shall not buy from himself. The principle is, that as the 
trustee is bound by his duty to acquire all the knowledge Trustee 
possible to enable him to sell to the utmost advantage for f^om himfelf. 
the cestui que trust, the question what knowledge he has 
obtained, and whether he has fairly given the benefit of that 
knowledge to the cestui que trust, which he acquires at the expense 
of the cestui que trust, no Court can discuss with competent 
sufficiency or safety to the parties (a) ; the same person cannot be 
both buyer and seller ; " he who undertakes to act for another in 
any matter, shall not in the same matter act for liimself."(6) 

The reason why a trustee is not permitted to purchase is, 
because the Court will not permit a man to have an interest adverse 
and inconsistent with the duty which he owes to another ; and as 
a trustee for sale is bound to get the best price for property to be 
sold that he can, the Court will not permit him to have an interest 
of his own adverse to the discharge of his duty to his principal. 
If he is the purchaser, he is interested in getting the property at 
the lowest price he can ; but if he is acting bond fide for the owner 
of the property, his duty is to sell at the best price he can obtain ; 
and the Court will not permit a party to place himself in a situation 
in which his interest conflicts with his duty ; for taking mankind 
at large, it is not very safe to allow a man to put his private interest 
in conflict with the duty which he owes to another, (c) 

It may be that the price given is fair, and that the trustee 
has not gained any advantage by the transaction, the pur- 
chase is nevertheless invaHd.(<Z) " The rule I take to be That price 
this," said Lord Eldon(e), " not that a trustee cannot buy terial. 
from his cestui que trust, but that he shall not buy from 
himself." " Without Sny consideration of fraud, or looking 
beyond the relation of the parties, that contract is void," said 
Lord Erskine(/), speaking of the case of a trustee selling to 
himself. (5') This disability extends to repurchases by a trustee 
from his own purchaser, and continues so long as the contract 
remains executory. (A) If the trustee has made a profit on the 



{a) Ex parte James, 8 Ves., 348; Abdulla, 31 Bom., 271. 

Imddy's Trustee v. Peard, 33, Ch. D., (d) Ex parte James, 8 Ves., 348 ; 

500. Ex parte Bennett, 10 Ves., 393 ; Ex 

(b) Whichcote v. Lawrence, 3 Ves., parte Lacey, 6 Ves., 627. 

750, per Lord Loughborough, L. C. ; (e) Ex parte Lacey, 6 Ves., 627. 

Ex parte Lacey, 6 Ves., 626 ; Ee Bloye's (/) Morse v. Boyal, 12 Ves., 372. 

Trust, 1 Mao. & G., 495. (g) And see Randall v. Errington, 

(c) In re Bloye's Trust, 1 Mac. & G., 10 Ves., 425. 

495, per Lord Cranworth ; and see {h) Williams v. Scott (1900), A. C. 

Ex parte Bennett, 10 Ves., 394 ; Costa (P. C), 499 ; Delves v. Gray (1902), 2 

Rica Railway Co. v. Forwood (1901), Ch., 606. 
1 Ch. (C. A.), 746. See also Ashidbai v. 



264 TRUSTEE PURCHASING TRUST-ESTATE. [LCC. IX. 

transaction, as by a re-sale, lie will have to account for such 
profit, (a) 

The nature of the property is immaterial ; the rule 
of property applies whether the property is moveable or immove- 
able. (6) 

So it is immaterial that the purchase is made by the trustee 

at a public sale by auction, or by another person on the 

purchase ° understanding that the purchaser would resell to the 

trustee, (c) " If persons who are trustees to sell an estate 

are there professedly as bidders to buy, that is a discouragement 

to others to bid. The persons present seeing the seller there to 

bid for the estate to or above its value, do not like to enter into 

that competition, "(ci) And it makes no difference that the 

purchase is in the name of another person as the trustee's 

agent, (e) And the rule applies to the case of one of several 

trustees buying for himself. (/) 

So a trustee may not purchase for another person. " One of 

the reasons for setting aside such transactions," said Sir 

by trustee Barnes Peacock(5'), " is, that the purchaser is presumed 

for another. from his position to have better means than the vendor 

has of ascertaining the value of the property purchased. 

Well, then, if a person knowing that another holds a fiduciary 

position and has a better knowledge of the value than the vendor, 

employs that person to purchase for him, and the trustee 

purchases secretly in his own name for the benefit of that other, 

it appears to their Lordships that the sale is equally invalid 

against the person for whose benefit it is purchased by the 

trustee as it would be against the trustee himself." 

A mortgagee, who sells under a power of sale, cannot, except 
with the leave of the Court, be allowed to purchase the mortgaged 
estate. (A) 

(a) Fox V. Mackreth, 2 Bro. C. C, 8 Mer., 200; Randall v. Errington, 10 
400 ; WMchcote v. Lawrence, 3 Ves., Ves., 423 ; Hall v. Hallet, 1 Cox, 134 ; 
740. Baker t. Caiier, 1 Y. & C, 250 ; Gopi 

(b) Hallv. Hallett, 1 Cox, 134 ; Crowe Narain v. Kunj Behari, 34 All, 306. 

V. Ballard, 2 Cox, 253; Killick v. (/) Whichcote v. Lawrence, 3 Ves., 

Flexney, 4 Bro. C. C, 160 ; Watson v. 740 ; Morse v. Royal, 12 Ves., 374. 

Toonb, 6 Madd., 153. {g) Dhonender Chunder Mookerjee v. 

(c) Campbell v. Walker, 5 Ves., 678 ; Miitty Lall Mookerjee, 14 B. L. R., 
13 Ves., 601 ; Lister v. Lister, 6 Ves., 283. 

631 ; Sanderson v. Walker, 13 Ves., (h) Dovmes v. Chazebrook, 3 Mer., 

601 ; Downes v. Grazebrook, 3 Mer., 200 ; S. M. Kamini Debi v. RamlocJian 

200 ; Re PostUthwaite, 39 L. T. N. S., Sirkar, 5 B. L. R., 450. See also Sheo 

58 : 37 W. R., 200. Nath v. Janki Prasad, 16 Cal., 132 ; 

(d) Eiic parte Lacey, 6 Ves., 629, per Mdhabir v. Macnaghten, 16 Cal., 682 
Lord Eldon. P. C. ; Dhamikota v. Bvdharaju, 30 

(e) Whelpdale v. Cookson, 1 Ves., Mad., 362 ; Ashutosh v. Behari LaZ, 35 
9 ; Campbell v. Walker, 5 Ves., 678 ; Cal., 61 ; see Chitta v. Bai Jamni, 40 
13 Ves., 601 ; Doivnes v. Grazebrook, Bom., 483. 



Lee. IX.] WHEN SALE MAY BE SET ASIDE. 265 

A person who has been named as a trustee for sale in an 
instrument, but who has never accepted or acted in the 
trust, is not a trustee or a person who has the power of ^3" ^^^ ^^° 
becoming a trustee ; and consequently he will not be dis- acted, 
abled from purchasing the trust-property, (a) So a merely 
nominal trustee may purchase. In this case there is no conflict 
between duty and interest on the part of the trustee, and there 
is no object in preventing him from becoming a purchaser. (6) 

However fair, open, and honest the transaction may be, 
although the trustee may have given as much for the pro- yJ^/^^^n cestui 
perty as it is reasonably worth, and as much as any one else que trust 
would give ; and although no fraud, mismanagement, or may set 
negligence appears to the Court, yet the sale is always ^^"'^ ^^'^■ 
liable to be set aside at the suit of the cestui que trust. (c) It is, 
as we have seen, immaterial that the trustee has not made any 
advantage. " If the connection (between the trustee and cestui 
que trust) does not satisfactorily appear to have been dissolved," 
said Lord Eldon(c?), " it is in the choice of the cestuis que trustent, 
whether they will take back the property or not. It is founded 
upon this, that though you may see in a particular case that he 
has not made advantage, it is utterly impossible to examine 
upon satisfactory evidence in the power of the Court — by 
which I mean in the power of the parties in ninety-nine cases 
out of an hundred whether he has made advantage or not. 
Suppose a trustee buys any estate, and by the knowledge 
acquired in that character discovers a valuable coal-mine 
under it ; and locking that up in his own breast, enters into 
a contract with the cestui que trust, if he chooses, how can the 
Court try that against that denial ? The probability is, that a 
trustee who has once conceived such a purchase will never disclose 
it ; and the cestui que trust will be effectually defrauded, "(e) 

" If," said Lord Eldon in another case(/ ), " a trustee can 
buy in an honest case, he may in a case having that appearance, 
but which, from the infirmity of human testimony, may be grossly 
otherwise." 

The duties imposed upon trustees prevent their buy- Trustee may 
ing for themselves, and it follows from the general rule "ot buy for 
that they cannot be permitted to buy for a third person ; another. 

(a) Chambers v. Waters, 3 Sim., 42 ; Gibson v. Jeyes, 6 Ves., 266 ; Ex parte 
', I M. & K., 195; Claric Lacey, ib., 625; Eandall \. Erringtan, 



V. Clark, 9 App. Caa., 1S3 ; Hari Eissen 10 Ves., 423; Dmimes v. Grazebrooh, 

V. Bajrany Sahai, 13 C. W. N., 557 : 3 Met., 209 ; Be Postlethwaite, 39 L. T. 

9C. L. J.,453. N. S., 58 : 37 W. R., 200. 

(6) Sutton V. Jones, 15 Ves., 587 ; (d) Ex parte Lacey, 6 Ves., 627. 

Naylorv. Winch,lS. & S., 567; Peoley (e) See Ex parte James. 8 Ves., 

V. Quitter, 4 Drew., 199. 337. 

(c) Campbell Y. Walker, 5 Ves., 678 ; (/) Ex parte Bennett, 10 Yes., 3S5. 



266 LIMITATION. [Lec. IX, 

for the Court can, with as little effect, examine whether that was 
done by making an undue use of the information received in the 
course of their duty in the one case as in the other, (a) 

The agent of a trustee for the sale of an estate employed for 

Agent of *^® ^^^^ ^^ ^^^ estate cannot purchase(6) ; the reasons 

trustee which disqualify his principal from purchasing apply 

may not equally to him. Practically, he is the person who conducts 

pure ase. the sale, audit is on his exertions thatthe result of the sale 

depends ; and, therefore, to say that the principal is incapacitated, 

but that the agent is not, would be an absurd distinction, the 

reason remaining the same and being as applicable to the one as to 

the other, (c) 

An agent not for sale(c?), but for management only(e), and a 
receiver appointed by the Court, and a solicitor or counsel(/) 
stand in a confidential relation, and cannot purchase without putting 
themselves at arm's length and a full disclosure of their knowledge. 

The principle that we are now considering appHes to the case 

of a trustee taking a lease of the trust-property to himself. 

taking^lease. ^^^ ^''^^J ^^^ ^^^ interest may conflict, and therefore, if 

the lease is advantageous to him, for that is equivalent to a 

purchase, he must account to the cestui que trust for the profits, 

and must give up the lease ; if it is disadvantageous to him, he 

will be held to his bargain, (g^) 

Although the Indian Limitation Act(^), provides, that no suit 

Time within against a person in whom property has become vested 

which sale in trust for any specific purpose, or against his legal 

must be representatives or assigns (not being assigns for valuable 

se asi e. consideration), for the purpose of following in his or their 

hands such property or the proceeds thereof or for an account 

of such property or proceeds, shall be barred by any length of 

time ; yet a cestui que trust who seeks to set aside a purchase must 

do so within a reasonable time{i), otherwise if he allows the 

trustee to remain in possession for a length of time as absolute 



(a) Coles V. Trecothick, 9 Ves., 248 ; Kelly, 224. 

Eic parte Bennett, 10 Ves., 400 ; Moc- (/) CaHer v. Palmer, 8 CI. & F., 

kerjee v. Mockerjee, L. R., 2 Ind. 657; McPhersonv. Watt, S App. Cas., 

App., 18. 254 ; Dongan v. McPherson (1902), 

(5) Whitcomb v. MincUn, 5 Madd., A. C. (H. L.), 197. 

91. (g) Ex parte Hughes, 6 Ves., 617 ; 

(c) Be Bloyes Trust, 1 Mac. &. G., Parker v. Brooke, 9 Ves,, 583; The 
495; Martinson v. Glomes, 21 Ch. D., Attomey-Oeneral v. The Earl of Claren- 
85. don, 17 Ves., 500. 

(d) King v. Anderson, 8 I. R., Eq., (h) Act IX of 1908, s. 10. 

147, 625. (i) Campbell v. Walker, 5 Ves., 680 ; 

(e) Alven v. Bond, 1 Flan. & Kelly, Chalmer v. Bradley, 1 J. & W., 59 ,- 
196 ; White v. Tommy, 1 Flan. '& Webb v. Borke, 2 Sch. & Lef., 672. 



Lee. IX.] CONFIRMATION. 267 

owner, his right to relief may be affected by his acquiescence, (a) 
What period of time would operate as an absolute bar to relieJE 
cannot be laid down exactly. Eelief has been refused after 
an acquiescence of seventeen years{6), or eighteen years, (c) 
And in Oliver v. Gourt{d), Richards, C. B., seemed to think that 
twelve years would be sufficient. Much of course would depend 
upon the nature of the transaction, (e) Sales have been set aside 
after acquiescence forten(/) and eleven years. (^r) But if there 
has been disguise and concealment on the part of the trustee, the 
purchase may be set aside even after an interval of twenty 
years(A) ; and there can, of course, be no acquiescence on the part 
of persons who are not competent to contract. (*) Nor can there 
be acquiescence if the cestui que trust was ignorant of the fact that 
the trustee was the purchaser.(y ) 

The rule as to acquiescence will not apply with the same force 
if the cestui que trust has been hindered from taking proceedings 
by poverty (fc), or in the case of creditors. (Z) But they may be 
barred by gross laches, such as delay for thirty-three years, (m) 

If the cestui que trust is a person competent to contract, he 
may confirm the sale, and will be estopped from subse- 
quently disputing it(w), unless the confirmation has been t^^'^"^^' 
obtained fraudulently, or he was ignorant of the facts. (o) 
The confirmation must not be contemporaneous with the 
conveyance(^), and it must be the solemn and deliberate act of 
the cestui que trust.{q) 



(a) Ex pane James, 8 Ves., 351 
Randall v. Errington, 10 Ves., 427 
Webb v. Rorke, 2 Soh. & Lef., 672 



423; Chalmer v. Bradley, 1 J. & W., 51 
(k) Roberts v. TuTistall, 4 Hare, 267. 
(/) Whichcote v. Lawrence, 3 Ves., 



Parkes v. White, 11 Ves., 226. 740 ; Ex parte Smith, 1 D. & C, 267; 

(6) Baker v. Read, 18 Beav., 398. Anon., cited in 6 Ves., 632 ; Kidney v. 

(c) Gregory v. Gregory, G. Coop, Cussmaker, 12 Ves., 158 ; York Build- 
201 ; Roberts v. Tunstall, 4 Hare, 257. ings Co. v. Mackenzie, 8 Bro. P. C, 42. 

(d) 8 Price, 167. (m) Hercy v. Dinwoody, 2 Ves. Jr., 
(c) See also Morse v. Royal, 12 Ves., 87 ; Scott t. Nesbitt, 14 Ves., 446.- 

374 ; Price v. Byrn, cited 5 Ves., 681 ; (n) Morse v. Royal, 12 Ves., 355 ; 

Barwell Y. Barwell, 34 Beav., 371; Clarice v. Swaile, 2 Eden, 134; Ches- 

Champion V. Rigby, 1 R. & M., 539; terfieldv. Jamsen,2\es., 125; Scott v. 

Roberts v. Tunstall, 4 Hare, 257. Davis, i M. & C, 92. 

(/) Hall V. Noyes, cited in 3 Ves., (o) Murray v. Palmer, 2 Sch. & 

749 ; Re Worssam, 46 L. T. N. S., 584 ; Lef. , 486 ; Morse v. Royal, 12 Ves., 373 ; 

51 L. J. Ch., 669. Adams v. Clifton, 1 Buss., 297 ; Gockrell 

(g) Murphy v. O'Shea, 2 J. & Lat., v. Cholmeley, 1 R. & M., 425 ; Ghahmr 

422. V. Bradley, 1 Jac. & W., 51 : Dunbar v. 

(h) Watson v. Toone, 6 Mad., 153 ; Tredennick, 2 B. & B., 317. 

Re Postlethwaite, 59 L. T. N. S., 58 ; (p) Wood v. Downes, 18 Ves., 128 ; 

(on appeal) 37 W. E., 200. Morse v. Royal, 12 Ves., 373 ; Scott v. 

(i) Campbell v. Walker, 5 Ves., Davis, iM.&C.,^! ; Roberts v. Tunstall, 

678 ; Buclemaster v. Buckmaster, 35 Ch. 4 Hare, 267. 

D. (C. A.), 21 ; floWe V. Jarmaw (1895), {q) Carpenter v. Heriot, 1 Eden, 

2 Ch., 419. 338 ; Montmorency v. Devereux, 7 C. & 

(j) Randall v. Errington, 10 VeS., F., 188. 



268 PURCHASE FROM CESTUI QUE TRUST. [LBC. IX. 

Although a trustee for sale cannot, so long as he remains a 
trustee, purchase from himself, yet he may, under certain 
l"omce^tui circumstances, purchase from his cestui que trust\a) " If," 
que trust. said Lord Eldon(6), " a trustee will so deal with his cestui 

que trust tla.a.t the amount of the transaction shakes off the 
obligation that attaches upon him as trustee, then he may buy." 
In Coles V. Trecothick{c) the same learned Judge said : " Upon the 
question as to a purchase by a trustee from the cestui que trust, I 
agree the cestui que trust may deal with his trustee so that the 
trustee may become the purchaser of the estate. But, though 
permitted, it is a transaction of great delicacy, and which the 
Court will watch with the utmost diligence ; so much, that it is 
very hazardous for a trustee to engage in such a transaction 
.A trustee may buy from the cestui que trust, provided 
there is a distinct and clear contract, ascertained to be such after 
a jealous and scrupulous examination of all the circumstances, 
proving that the cestui que trust intended the trustee should buy, 
and there is no fraud, no concealment, no advantage taken by 
the trustee of information acquired by him in the character of 
trustee. I admit it is a difficult case to make out, wherever 
it is contended, that the exception pre vails. "(<?) If the con- 
sideration was insufficient, the Court will set aside the tran- 
saction, (e) 

If the relation of trustee and cestui que trust has been in some 
way dissolved, or if not, the parties are so much at arm's 
relation'^'' length that they agree to take the character of purchaser 
dissolved. ^^^ vendor(/ ), — if the cestui que trust is well advised of 

what his rights are(^), and it is distinctly and fally under- 
stood by him that he is selling to the trustee, and the trustee 
takes no advantage of his situation to produce a beneficial bargain 
to himself (A), the trustee may purchase from his cestui que trust, 
for then he purchases not indeed from himself as trustee, but 
under a specific contract with his cestui que trust. (i) The conse- 
quence is, that until the trustee has by contract done what all the 
cases admit he may do, — ^that is to say, effectually shaken off 
the character of trustee, and put himself in circumstances in 



(a) Ayliffe v. Murray, 2 Atk., 59 ; 2 Ind. Ap., 18. 
WMchcoie v. Lawrence, 3 Ves., 750; (/) Gibson v. Jeyes, G Yes., 211 ; Re 



Gibson v. Jeyes, 6 Ves., 277 ; Thompson Worssam, 46 L. T. N. S , 584 

V. Eastwood, 2 Abp. Cas., 215 ; Dowgan v. Prendergast, 55 L. T. N. S., 767. 

V. McPherson (1902), A 0. (H. L.), 197. (g) Spring v. Pride, 4 DeG. J. & S., 

(6) Ex parte Lacey, 6 Ves., 626. 405. 

(c) dVes., 234: ; Phwrightv. Lambert, (h) Randall v. Errington, 10 Ves., 
52 L. T. N. S., 646. 427; Re Worssam, 46 L. T. N. S., 

(d) And see Randall v. Errington, 10 584 ; Luddy's Trustee v. Peard, 33 Ch. 
i7es.,426; Downesv. Grazebivojc, SMev., D., 500. 

208 ; Morse v. Royal, 12 Ves., 373. (i) Dowries v. Grazebrook, 3 Mer., 

(e) Mocherjee v. Mocherjee, L. R., 208. 



Lee. IX.] PURCHASE FROM CESTUI QUE TRUST. 269 

which he shall be no longer the person entrusted to sell, he shall 
not buy for himself, (a) 

The burden of proof to show the honafdes of the transaction 



Burden of 



throughout, that the utmost price that could have been 
produced was obtained, and that the cestui que trust has not ™o*f^ 
in any way been defrauded, lies upon the trustee. (6) 

A trustee cannot be allowed to act up to the time of sale, to 
get all the information that may be useful to him, and then to 
discharge himself from the character of trustee and buy for 
himself. He must at the time of purchase have fully shaken off 
the character of trustee by the consent of the cestui que trust 
freely given, after full information and after the right to purchase 
has been bargained for.(c) 

! Where the cestui que trust has taken upon himself the conduct 
of all the preliminary proceedings requisite for the sale, such as 
the surveys, the mode and conditions of sale, the plans, the choice 
of the auctioneer ; and has thus acquired a perfect knowledge of 
the value of the property, and the trustee has not been in a situa- 
tion to acquire any exclusive information respecting the 
property, and a contract has then been made for sale by the 
cestui que trust to the trustee, the Court will deal with the contract 
as if made between two indifferent persons putting each other at 
arm's length, and will give effect to the sale, though made for an 
inadequate price. (cZ) 

So the purchase has been supported where the cestui que trust 
proposed and pressed it upon the trustee, (e) 

And where the trustee had exerted himself considerably to 
sell the trust-estate, but had not been able to meet with a 
purchaser, and subsequently agreed to purchase the premises for 
himself, with the consent and approval of the cestui que trust. Lord 
Northington refused to set the transaction aside, though he said 
that he did not like the circumstance of a trustee dealing with 
his cestui que trust.{f) 

The solicitor of the cestui que trust cannot, in the absence of 
express authority from his client, enter into a contract with the 
trustee for the purchase by the trustee of the trust-property, (gf) 



(a) Ex parte Bennett, 10 Ves., 394. Spring v. Pride, 4 DeG. J. & S., 395. 

(6) Denton v. Dormer, 23 Beav., (d) Coles v. Trecothick, 9 Ves., 248. 

290 ; Luff V. Lord, 34 Beav., 226 ; (e) Morse v. Royal, 12 Ves., 355. 

Readdy v. Prendergast, 55 L. T. N. (/) Clarke v. Sivaile, 2 'Eden, IZi. 

S., 767. (gf) Dovmes v. Grazebrook, 3 Mer., 

(c) Ex parte James, 8 Ves., 353 ; 208. 



270 PURCHASE BY CEEDITOES* [LeC. IX. 

Where tlie cestuis que trustent are creditors of an insolvent 
estate, the trustee can only purchase with the consent of 
Trtrntors!''^ all the creditors. In Whelpdaler. CooJcson{a),LoTd^Ea.Id- 
vficke confirmed the sale in case the majority of the credi- 
tors interested should not dissent. Lord Eldon, however, in Ex 
parte Lacey{b), differed from Lord Hardwicke, saying : " I doubt 
the authority of that case ; lor if the trustee is a trustee for all the 
creditors, he is a trustee for them all in the article of selling to 
others ; and if the jealousy of the Court arises from the difficulty 
of a cestui que trust duly informing himself what is most or least 
for his advantage, I have considerable doubt whether the 
majority in that article can bind the minority." 

Leave has been given to assignees to purchase upon the con- 
Assienee dition tha't the consent of the creditors at a meeting 

called for the purpose shall have been first obtained, (c) 

The Court will not, where the cestuis que trustent are sui juris, 

T oo,,,. f„ KM give the trustee leave to bid at a sale by auction. In the 
Leave to bia. o /..r in iii- 

case 01 infants, as we shall see presently, tne rule is 

different. It is for the cestui que trust, the person interested, to 

decide whether he will sell to the trustee, and not a matter for the 

Court, (rf) The reason why a trustee is not allowed to bid is, 

because he must have acquired much information, and the Court 

could feel no security that he would do his duty and communicate 

this information so as to raise the price if he had a prospect 

of becoming a purchaser. But if the Court is satisfied that 

no purchaser, at an adequate price, can be found, then the 

trustee may be allowed to make proposals and to become the 

purchaser, (e) 

The cestuis que trustent must be in such a position that they 

can act for themselves, and can effectually contract with 

from iiffants *^® trustee. A purchase, therefore, by a trustee from 

infant cestuis que trustent will be void, as the cestuis que 

trustent are persons incapable of entering into a binding 

contract. (/) It may be that the trustee is willing to give more 

than any one else for the property ; and in such a case the only 

way by which he can safely purchase is to institute a suit, and 

apply to the Court by motion to let him be the purchaser, saying 

that so much is bid and that he will give more. The Court will 

examine into the circumstances, — ask who had the conduct of 



(a) Cited in Campbell v. Wcdker, 5 (e) Tennant v. Trencliard, L. R.. 

Ves., 682. 4 Ch., 547. See Coakes v. Boswell, 

(6) 6 Ves., 628. 11 Ap. Cas. 232; 

(c) Ex parte Bage, 4 Madd., 459; (/) Campbell v. Walker, 5 Ves., 682 ; 
Anon., 2 Russ., 350. Sanderson v. Walker, 13 Ves., 601. 

(d) Ex parte James, 8 Ves., 352. 



Lee. IX.] LENDING TO TRUSTEES. 271 

the transaction, — whether there is any reason to suppose the 
premises could be sold better,; and upon the result of that 
inquiry will let another person prepare the particulars of sale, 
and let the trustee bid.(ffl) 

An executor or administrator cannot be permitted, either 
immediately or by means of a trustee, to be the purchaser of 
any parts of the assets of his testator or intestate, but will Legal 
be considered as a trustee for the persons interested, and tfves^^^" ^' 
must account to them for the utmost extent of the profit 
made by him. (6) And the general rule that a trustee shall not 
purchase trust-property applies to an executor de son tort(c), or 
an agent(c?), and to any persons who may stand in a fiduciary 
position, (e) 

But the rule does not extend to a purchase by a mortgagee 
from his mortgagor, for the circumstance that two parties 
stand to each other in the relation of trustee and cestui que °^ g^e^^. 
trust does not affect any dealing between them unconnected with 
the subject of the trust. (/) Nor is there any principle in equity 
that a surviving partner cannot purchase the share of a deceased 
partner from his representatives. (5^) A creditor taking out execu- 
tion is not precluded from becoming the purchaser of the property 
seized under it.{h) A person who though named as executor, 
never proves, may purchase from the executors who have proved 
the will.(i) 

" A trustee or co-trustee whose duty it is to invest trust- 
money on mortgage or personal security must not invest Lending to 
it on a mortgage by, or on the personal security of, trustees, 
himself or one of his co-trustees." The author of the Indian Trusts 
trust relies upon the united vigilance of all the trustees '^*' ^" ^^' 
with respect to the solvency of the borrower, and the object is 

(a) Campbell V.Walker, 5 \es.,(,8\i 322 ; 2 Mac. & G., 10. See a\so Kennedy 
Farmer v. Dean, 32 Beav., 327. v. De Trdfford (1896), 1 Ch. (C. A.), 

(b) Hall T. Hallett, 1 Cox., 134; 726; Nutt v. Easton (1899), 1 Ch., S73 
Killick V. FUxney, 1 Bro. C. C, 161 ; (1900) ; 1 Ch. (C. A.), 29 (cases of 
Watscm V. Toone, 6 Madd., 153 ; Naylor purchase by one of several mortgagors 
V. Winch, 1 S. & S., 566 ; Gray v. from the mortgagee). See also Sheo- 
Warner,43'L. J. Ch., 556: 21 W. R., nath v. Janlci Prasad, 16 Gal. 132; 
808 ; Beningfield v. Baxter, 12 App. Faiyaz v. Fragnarain, 29 All. 339 ; 
Gas., 167 ; Be Pepperell, 27 W. R., Rhodes v. Padmanabha, 17 M. L. T. 18; 
410. 1 L. W. 1033. 

(c) Mulvany v. Dillon, 1 B. & B., (g) Chambers v. Howell, 11 Beav., 6. 
408 ; Gokuldas v. Valibai, 15 Bom. L. As to duty to disclose in such cases, 
R., 343. see Law v. Law (1905), 1 Ch. (C. A.), 

(d) King v. Anderson, I. R., 8 Eq., 140. As to purchase in bankruptcy 
625 ; Murphy v. G'Shea, 2 J. & Lat., proceedings, see Boswell v. Cooks, 23 
422. Gh. D., 302 ; 27 Ch. D. (C. A.), 424. 

(e) Docker v. Somes, 2 M. & K.. (h) Stratford v. Twynam, Jao., 418. 
665. (i) Clark v. Clark, 9 App. Gas., 733. 

( f) Knight v. Majoribanks, 11 Beav., 



272 LENDING TO TENANT-FOE-LIFE. [LBC. IX, 

defeated by a loan to one of the trustees. (a) "And trustees 
having a power, with the consent of the tenant-for-life, to lend on 
personal security, are not, it seems, necessarily precluded from 
lending on personal security to the tenant-for-life himself(6), 
but ought not to do so if he is a man to whom such an advance 
cannot be prudently made.(c) And when the Court has assumed 
the administration of the estate by the institution of a suit, it 
will not direct an investment on personal security, though there 
be a power to lay out on either personal or Government security, 
but will order all future investments to be made on Government 
security."((Z) 

(a) V. Walker, 5 Russ., 7 ; 1 Ch., 593. 

V. Sewell, 1 My. & Cr., 8 ; (c) Keys v. Lane, 3 I. R. Eq. 



Westover v. Chapman, 1 Coll., 177. (d) Holmes v. Moore, 2 Moll., 328. 

(6) Be Laing's Settlement (1899), See Lewin. 12th Edn., 347-8. 



LECTURE X, 

OF THE RIGHTS AND LIABILITIES OF THE CESTUI QUE TRUST. 

Bight of cestui que trust to rents and profits : Indian Trusts Act, s. 65 — Tidd v. 
Lister — Kight to call for conveyance — Costs — Indemnity — Bight 
of cetilai que trust to have trust carried out : Indian Trusts Act, a. 56 — 
Eight of cenlui que trust to hold property absolutely : Indian Tiusts Act, 
s- 57 — Separate use — Right of cestui que trust to insijectiou : Indian 
Trusts Act, s. 58 — Custody of title-deeds — Bight of cestui que trust to 
aUenate his interest — Cautious in assignments of eqmtable interest — 
Separate use — Method of conveyance — Assignee takes subject to all 
equities — Set-off — Mutual demands must be in respect of same rights 

— Notice to trustees — Mortgage — Description of property — What is 
sufficient notice — To whom notice to be given — Agents — Notice to 
one of several trustees — Notice before trust-fund received — Bankers 

— Trustee purchaser — Non-payment — Mortgagee — Immoveable property 

— Stop-order — Bight to execution of trust — Suit tor execution of trust ; 
Indian Trusts Act, s. 59 — Intention of author of trust carried out — 
Right to proper trustees : Indian Trusts Act, s. 60 — Suit for appointment 
of new trustees — Costs — Grounds for removal of trustee — Bules for 
selecting new trustees — In re Tempest — Right to compel trustee to do act 
of duty — Injimotion — WrongftU purchase by trustee — Interest — 
Allowance for outlay — Reconveyance — Interest — Costs — Following 
trust-estate into hands of third persons — Volunteers — Purchasers for 
value — Pxu-chase from guardian — Notice of trust — Purchaser for 
valuable consideration without notice — Purchaser without notice from 
purchaser with notice — Purchaser with notice from purchaser without — 
Fraud — • Doubtful equity — ■ Following converted trust-property — Proof 
of purchase with trust-money — Money, notes, or negotiable instruments — 
Trust-fund mixed with trustee's money — Pennell v. Defiell — Be Hallett's 
Estate — Lien — Limitation — Accrual of cause of action — Fraud — 
Purchase from manager of joint Hindu family — Position of shebait — Duty 
of purchaser — Terms on which sale set aside — Duty of manager — What 
is sufficient necessity — Sale to pay debts — Hunooman Persaud Panday's 
case — Purchaser under execution — Purchase from heir of Mahumedan 
debtor — Acquisition by trustee of trust-property wrongfully converted 

— LiabiUty of executor or administrator to pay interest — Liability of 
trustee who leaves property uninvested — When trustee liable to pay 
interest — Trustee employing trust-funds in trade — Docker v. Somes — • 
Apportioning profits — Compound interest — Trust-funds mixed with 
trustee's money — Partner trustee emplojring trust-funds in business — 
Election where trust-property to be sold or invested — Election by one 
cestui que trust to retain property unconverted — Notification of election — 
Liability of cestui que trv,st joining in breach of trust — Against whom interest 
of cestui que trust appUed — Rights and liabilities of transferee from cestui 
que trust. 

In the case of a passive trust, the cestui que trust has a c^laue 

right to take the rents and profits or income of the trust-pro- trust to rents 

perty(a) ; and where there is only one cestui que trust, he and profits, 

may compel the trustee to put him in possession of the ^^ct T Trusts 

(a) Smith v. Wheeler, X Mod., 17. 
A, LT 18 



274; RIGHT TO RENTS AND PROFITS. [LeC. X. 

estate, (a) The cause of action in such a case accrues upon refusal 
by the trustee to give up the property upon demand by the 
cestui que trust, and not from the date when the trustee enters 
into possession. (6) If trustees eject a cestui que trust, they will 
have to account, not only for rents which they receive, but for 
the whole of the rents which the tenants were bound to pay.(c) 
But if there are several cestuis que trustent, the Court will not, as a 
rule, take the property out of the hands of the trustees, or if it 
does do so, it will take care that the transfer shall be accompanied 
with such conditions and restrictions as the nature of the case may 
require in order to protect the interests of the cestuis que trustent who 
. do not get possession. In Tidd v. Lister{d), where successive 

tgj ». Lis- estates were limited by will, it was argued that it was a 
matter of course in a Court of Equity to divest trustees of 
the management of the trust-property and to deliver possession of 
it to the cestui que trust. Sir John Leach, V. C, however, refused 
to remove the trustees from the management, saying, " My first 
impressions were strongly against the existence of any such rule. 
It is perfectly plain from the continuing nature of this trust, that 
the testator intended that the actual possession of the trust-property 
should remain with the trustees ; and it did appear to me a singular 
proposition that if a testator, who gives in the first instance a 
beneficial interest for life only, thinks fit to place the direction of 
the property in other hands, which is the obvious means of securing 
the provident management of that property for the advantage of 
those who are to take in succession, that it shoidd be a principle in 
a Court of Equity to disjappoint that intention, and to deliver over 
the estate to the cestui que trust for Ufe, unprotected against that 
bias which he must naturally have to prefer his own immediate 
interest to the fair rights of those who are to take in remainder 
. There niay be cases in which it may be plain from 
the expressions in the will, that the testator did not intend that the 
property should remain under the personal management of the 
trustees. There may be cases in which it may be plain from the 
nature of the property that the testator could not mean to exclude 
the cestui que trust for hfe from the personal possession of the 
property, as in the case of a family residence. There may be very 
special cases in which this Court would deliver the possession of 
the property to the cestui que trust for fife, although the testator's 
intention appeared to be that it should remain with the trustees, 
as where the personal occupation of the trust-property was 



(o) Brovm v. How, Barn., 354 ; Madah, 3 B. L. B., A. C, 409 ; Raja- 

Attorney-Oeneral v. Lord Gore, ibid., ram v. Lakshmi Sankara, 13 M. L. J., 

150 ; and see Brajnath Baisakh v. 206. 

Matilal Baisakh, 3 B. L. R., 0. (c) Kaye v. Powell, 1 Ves. Jr., 408r 

J., 92. (d) 5 Madd., 429. See also Se 

(6) Bakhaldas MadakY. Madhusudun Bentley, 54 L. J., N. S. Ch., 782. 



Lee. X.] EIGHT TO CALL FOR CONVEYANCE. 275 

beneficial to the cestui que trust. There the Court, taking means to 
secure the due protection of the property for the benefit of those 
in remainder, would in substance be performing the trust according 
to the intention of the testator."(a) 

And where a cestui que trust would be entitled to require the 
trustee to put him in possession of the trust-property, he 
may call upon the trustee to convey the property to such ^'S^/ '° 
person as he may require. (6) Should the trustee refuse to conveyance, 
convey, the cestui que trust may institute a suit to compel 
him to do so, and if it appears that there was no good ground for the 
refusal, the trustee will have to pay the costs of the suit(c), 
as where a trustee has insisted upon enquiring into matters 
connected with a distinct trust((^), or refuses to convey through 
obstinacy and caprice, (e) But a trustee will not be made to pay 
costs where he a-cts in good faith and under competent advice, 
though the fact that the trustee consulted counsel will not neces- 
sarily entitle him to his costs. (/) Nor will he be made to pay costs 
where information as to the existence of the trusts has been with- 
held from him(^), or where he has refused to convey in pursuance 
of an opinion expressed by counsel that the concurrence of certain 
parties was necessary. (^) " I admit," said Lord GifEord(i), " that 
it is only in a strong case that costs will be given against trustees : 
yet where they refuse without a reasonable motive, for their refusal 
to act without suit, they will be visited with costs." " Trustees," 
said Sir J. Leach, V. C.(j'), "are entitled to the protection and 
direction of the Court in the exercise of their trusts, and can never 
be called upon to pay costs, unless they refuse to act without suit 
merely from obstinacy and caprice. In the present case, I am of 
opinion that the suit has been rendered necessary by the caprice 
and pertinacity of the trustees ; and considering the immense 
expense to wMch beneficiaries may be exposed, where a trustee 
who might have satisfied himself out of Court concerning the 
propriety of what he was called upon to do, as well as by coming 

(a) See also Blalce v. Bunbury, 1 Ves. 24 W. R., 51 ; Easton v. Landor, 62 L. J. 
Jr., 194 ; Jenkins v. Milford, 1 J. & W., Ch. (C. A.), 164 ; Be Weall, 42 Ch. D., 
629 ; Baylies v. Baylies, 1 Coll., 537 ; 674 ; Be Skinner (1904), 1 Ch., 289. 
Denton v. Denton, 7 Beav., 388 ; Pugh (d) Palairetv. Carew, 32 Beav., 564. 
V. Vaughan, 12 Beav., 517 ; Padma- (e) Taylor v. Glanville, 3 Mudd., 173 ; 
nabha v. Williams, 23 Madd., 239. Smith v. Bolden, 33 Beav., 262 ; South- 

(b) Payne v. Barker, Sir G. Bridg- well v. Martin, 21 L. T. N. S., 135. 
man's Rep., 24. (/) Deveyv. Thornton, 9 Hure, 232 ; 

(c) Jones V. Lewis, 1 Cox, 199 ; Angier v. Stannard, 3 My. & K., 566 ; 
Thorby v. Yeats, 1 Y. & C. C. C, 438 ; Scott v. Milne, 25 Ch. D. (C. A.), 710 ; 
Willis Y. Hiscox, 4 M. & Or., 202; iJe ^edioe (1893), 1 Ch. (C. A.), 547. 

-Campbell v. Home, 1 Y. & C. C. C, 664 ; (g) Holford v. Phipps, 3 Beav., 434. 

Hampshire y. Bradley, 2 Coll., 34; (h) Goodsonv. Ellison, BB,Tisa., 583 ; 

Penfold V. Bouch, 4 Hare, 272 ; Firmin Poole v. Pass, 1 Beav., 600. 

V. Pulham, 2 DeG. & Sm., 99. See also (i) Goodson v. Ellison, 3 Russ., 589. 

ThomsonY. Eastwood,2 A.-pp.G3,s., 215; (j) Taylor y. Glanville, 3 Madd., 

Hengh v. Scard, 33 L. T. N. S., 659 ; 178. 



276 INDEMNITY. [Lec. X, 

into Court, refuses to act unless he is compelled by a decree, the 
defendant must pay the costs of the suit." 

If there is any real difficulty, the trustees are entitled 
Indemnity. ^^ require an indemnity, (a) 

A trustee is entitled to protect himself from liability. For 
instance, he may require that all necessary persons are made 
parties(6), and he cannot be required to convey any other estate 
than that conveyed to him.(c) Nor can he be required to accept 
incorrect recitals, ((i) Apparently, a trustee cannot be called upon 
from time to time to divest himself of different parcels of the trust- 
estate so as to involve himself as a party to conveyances to a 
number of different persons. He has a right to say, " If you mean 
to divest me of my trust, divest me of it altogether, and then make 
your conveyances as you think proper."(e) If the trustee has reason- 
able suspicions that the cestui que trust has been induced to enter 
into the contract by coercion, undue influence, fraud, misrepresenta- 
tion or nustake, it is his duty to refuse to convey ; and he will not 
be visited with the costs of a suit to compel him to convey, even 
though it appears that the suspicions were unfounded. But he 
must take some steps to ascertain whether or not the contract is 
really of an improper character ; mere suspicion is not of itself 
sufficient to warrant a refusal to convey, for enquiry may show 
that it is groundless. (/) 

The cestui que trust has the right to have the intention of the 

author of the trust specifically enforced to the extent of his 

Right of particular interest, (^f) The Specific EeUef Act(>^) provides, 

"iruTtfha.ve ' *^** *^^ specific performance of any contract may, in the 

trust carried discretion of the Court, be enforced, when the act agreed 

out; to be done is in the performance, wholly or partly, of a trust 

ActT s™^*^ ^^^ *^® following illustration is appended to the section : 

' ' "A holds certain stock in trust for B. A wrongfully 

disposes of the stock. The law creates an obligation on A to restore 

the same quantity of stock to B, and B may enforce specific 

performance of this obligation." 



(a) Ooodson v. MUson, 3 Russ., 3 Madd., 10. 

d83. ( / ) See Campbell v. Home, 1 Y. & 

(b) Uolford Y. Philips, 3 Beav., C.C.C, 664; ii'iVrnm v. P«Ztem,2DeG. 
434. & Sm., 99 ; King v. King, 1 DeG. & J., 

(c) Saunders v. Neville, 2 Vern., 663 ; Hannah v. Hodgson, 30 Beav.^ 
428 ; Ooodson v. Ellison, 3 Euss., 583. 19. As to what amounts to coercion^ 

(d) Hartley v. Burton, L. E.., 3 Ch., undue influence, fraud, misrepresenta- 
365. tion, and mistake, see Indian Contract 

(e) Goodson v. Ellison, 3 Euss., 594. Act, (IX of 1872), ps. 15, 16, 17, 18, 20, 
per Lord Eldon. But where a portion 21, 22. 

of a fund belonging to the beneficiary \g) See Surendro Keshub v. Doorga 

is assigned away, the assignee will Soondary, 19 Cal., 513 P. 0. 

have a claim for it ; see Smith v. Snow, {h) I of 1877, s. 12, cl. (a). 



Lee. X.] RIGHT TO HOLD PROPERTY ABSOLUTELY. 277 

The other parties entitled may express a desire that the trust 
should be difEerently administered ; but if such a divergence from 
the donor's will would prejudice or injuriously affect the rights of 
any one cestui que trust, he may compel the trustees to adhere 
strictly and Uterally to the Une of duty prescribed to them, (a) 

If property is given to trustees to hold for the benefit of any 
persons until they attain some age over the age of majority, 
and then to pay it over to such persons absolutely, the Court Rk^i of 
will allow the cestuis que trustent, on attaining majority, to 'tmsAVholA 
have the property handed over. The cestuis que trustent, if property 
they have an absolute and indefeasible interest in the trust- absolutely, 
property, are not bound to wait until the time fixed by the ^ctT "iT^^ 
author of the trust. If some other person is to have the > ^- 5 • 

enjoyment of the property until the time fixed, then the cestuis que 
trustent must wait Tmtil the time arrives. Thus, if a fund is given to 
trustees to accumulate, and hand over to a certain person on his 
attaining twenty-five, he may claim the fund on attaining majority. 
If however, the trustee is to pay the income to A until B attains 
twenty-five, and then to hand over the principal to B, B must wait 
until he attains twenty-five before he can claim the fund. (6) The 
principle is the same where the beneficiary is a charitable institu- 
tion, (c) If a sum of money is bequeathed to trustees upon trust to 
purchase an annuity for a certain person who is of age, and there 
is no gift over, or provision for cesser, he or his legal representative 
may claim the sum given, instead of the annuity. (S) So a trust for 
the maintenance of an adult, is a trust for Ms benefit generally, 
and the principal will, on his insolvency, pass to his assignee, (e) 

There is one exception to the rule that a cesVui que trust, who 
has an absolute interest in a trust-fund, may claim the 
fund on attaining majority, — ^namely, where property is jn^Un Trusts 
settled upon a married woman for her separate use, without Act, s. 56. 
power of anticipation. In such a case she is not entitled 
to claim the fund, and cannot by any device evade the restraint 
upon anticipation. (/) The reason for this is the pecuhar nature 



(o) Lewin, 12th Edn., 884, s. 2, citing W. N., 26 ; Re Couturier (1907), 1 Ch., 

Deeth v. Hale, 2 Moll., 317. 470. 

(&) Josselyn v. Josaelyn, 9 Sim., 63 ; (d) Dawson v. Hearn, lU. & M., 606 ; 

Saunders v. Vautier, 4 Beav., 115 ; Re Browne's Will, 27 Beav., 324. 

Curtis V. Lukin, 5 Beav., 147 ; Roche (e) Younghusband v. Gisborne, 1 Coll., 

y. RocJce, 9 Beav., 66 ; Gosling v. 400 ; Re Ashby (1892), 1 Q. B., 872. 

Gosling, Johns., 265 ; Pearson v. Lane, (/) Stanley v. Stanley, L. R., 7 Ch. 

n Yes., 101 ; Magrath V. Morehead, li. Div., 589; Lady Bateman r. Faber 

B., 12 Eq., 491. (1897), 2 Ch., 223 (1898) : 1 Ch. (C. A.), 

(c) Harbin v. Masterman (1894), 144. Thi^ is independently of the pro- 

2 Ch. (C. A.), 184 ; Wharton v. Master- .visions of the Trustee Act, 1893 (56 & 

man (1895), A. C, 186. Me Robins 57 Vic. c, 58), a. 45. See also Bttttan- 

(1907), 2 Ch. (C. A.), 8 ; Re Brunning sTiaw v. Martin, Johns., 39. 
(1909), 1 Ch., 276. Re Friend (1898), 



278 ALIENATION OP BENEFICIAL INTEREST. [LeC. X, 

of this trust. It is intended as a provision for the wife, and the 
object would be defeated if the wife could obtain possession of the 
principal 

The Indian Trusts Act provides that " the beneficiary has a 

right, as against the trustee and all persons claiming under 

ces%i gue ^^ ^^^ notice of the trust, to inspect and take copies 

trust to of the instrument of trust, the documents of title relating 

inspection. solely to the trust-property, the accounts of the trust- 

Act'T^?"^'^ property and the vouchers (if any), by which they are 

supported(a), and the cases submitted and opinions taken 

by the trustee for his guidance in the discharge of his duty."(&) 

Trustees do not act negligently in leaving documents of title in the 

hands of one of their number and allowing him to receive 

title-°de^ds ^^^ income. The reason is, that the deeds must be held 

by some one person, unless they are deposited with bankers 

or placed in a box secured by a number of different locks, of which 

each trustee should hold one of the keys, and negligence cannot be 

imputed to trustees for not taking such precautions as these, (c) 

A cestui que trust, if competent to contract, may aUenate or 
devise his interest in the trust-fund((?), even if his interest 
Right of only amounts to a bare possibility, (e) The cestui que trust 

trust\o ^^y exercise this right of ownership without the interven- 

alienate his tion of the trustees, who have no power of interfering(/), 
interest. ^nd where the cestui que trust conveys his interest in the 

Act'^a! s™^ ^ trust-fund to a purchaser, the purchaser may institute 
a suit against the trustee for a conveyance of his 
interest, (g') But a mere right to sue a trustee for the chance 
of recovering from him interest or profits of part of the trust- 
funds in respect of which he is alleged to have committed a. 
breach of trust, is not assignable. (A) 

Cautions in " ^^^ purchaser of an equitable interest in choses-in- 

assignments action should, for his security, never dispense with the two 

pf equitable following precautions : First, he should make inquiries 

interest. ^^ ^j^^ trustee or debtor whether the equity or claim of the 

(o) Bx parte Holdsworth, 4 Bing., N. (e) Goring v. Bickerstaff, 1 Ch. Ca., 8. 

C, 386 ; Re Gowin, 31 Ch. D., 179 ; See as to transfer of dioses-in-action,. 

Oitley V. Gilby, 8 Beav., 602 ; Re Tilbot Transfer of Property Act (IV of 1882), 

(1892), 1 Oh., 86; Re Dartnell (1895), es. 130-137. 

1 Ch. (C. A.), 474. (/) Philips v. Brydges, 3 Ves.,. 

(6) Wynne v. Humberston, 27 Beav., 127. 

421. (g) Goodson v. Ellison, 3 Russ., 583 ; 

(c) Cottam V. Eastern Counties Rail- Jones v. Farrell, 1 DeG. and J., 208 ; 
way Co., 1 J. and H., 247. Bence v. Shearman (1898), 2 Ch. (C. A.),. 

(d) Lord Cornbury v. Middleton, 1 Ch. 582. 

Ca., 211 ; Burgess v. Wheate, 1 Eden., {h) Hill v. Boyle, L. R., 4 Eq., 260. 

195. See Re Atkinson (1908), 2 Ch. But see Re Park Gate Wagon Co., 17 
(0. A.), 307. Ch. D. (C. A.), 284. 



Lee. X.] ALIENATION OP BENEFICIAL INTEREST. 279 

vendor has been made the subject of any prior incumbrance. The 
trustee, however, is under no equitable obligation to answer 
inquiries made by a person about to deal with his cestui que 
trust. Such a person can have no greater rights than the cestui 
que trust himself, and though it is the duty of a trustee to give 
his cestui que trust, on demand, information with respect to the 
mode in which the fund has been dealt with and where it is, 
yet it is no part of his duty to tell his cestui que trust what 
incurabrances the cestui que trust has created, nor which of 
his incumbrancers have given notice of their respective rights. 
If the trustee thinks fit to answer the inquiry, he is not bound 
to do more than give an honest answer ; that is to say, to do 
more than answer to the best of his actual knowledge and 
belief. He may, no doubt, undertake greater responsibility ; 
he may bind himself by a warranty, or he may so express 
himself as to be estopped from afterwards denying the truth 
of what he had said ; but imless he does one or the other he will 
not, consistently with the decision of the House of Lords in 
Derry v. Peck (a), if he answers honestly, expose himself to 
liability. (6) Secondly, upon the execution of the assignment, the 
purchaser should himself give notice of his own equitable title to 
the trustee or debtor, by means of which he will gain precedence 
of all prior incumbrancers who have not been equally diligent, and 
will prevent the postponement of himself to subsequent incum- 
brancers more diligent than himself ; and of course the trustee or 
debtor will be personally responsible, if after such notice he parts 
with the fund to any person not having a prior claim, "(c) 

If property is settled upon a married woman for her separate 
use without power of anticipation, she cannot, upon the 

same principle that prevents her from claiming the trust- user*^* ^ 

fund part with her interest in the trust-fund. But a Indian 

general restriction against alienation is against the policy Trusts 

of the law, and will not operate to prevent the cestui *^ > ^- 5 • 
que trust from parting with his interest. (<?) 

Conveyances of the interest of the cestui que trust are regulated 
in India by the Transfer of Property and the Eegistration Acts.(e) 



(a) 14 App. Gas., 337. (c) lewin, 12th Edn., 907. 

(6) Low V. Boureerie (1891), 3 Ch. {d) Snowdon v. Dales, 6 Sim., 524 ; 

(C. A.), 82. In this case Lindley, L. J., Green v. Spicer, 1 R. & M., 395 ; Graves 

explained the cases, BroM«ie V. /Savajfe, v. Dolphin, 1 Sim., 66; Brandon v. 

4 Drew., 639; Burrows v. Lock, 10 Robinson, 18 Ves., 429; Bochford v. 

Ves., 470, and said that Slim v. Crou- Hackman, 9 Hare, 480 ; Be Fitzgerald 

Cher, 1 DeG. F. & J., 518, was over- (1903), 1 Ch., 933 ; (1904), 1 Ch. (C. A.), 

ruled by Derry v. Peake. See also Ward 573. 

V. Buncombe, (1893), A. C, 369 ; Porter (e) IV of 1882, and XVI of 1908. 
V. Moore (1904), 2 Ch., 367. 



280 



ASSIONBE TAKES SUBXECT TO EQUITIES. [LeC. X. 



Assignee 
takes sub- 
ject to all 
equities. 



Set-off. 



The assignee of the interest of a cestui que trust, as a general 
rule, takes it subject to all the equities to which it was 
liable in the hands of the assignor(a), and he may even be 
liable to equities subsequently attaching. Thus, if an 
executor assigns his reversionary legacy, and is subse- 
quently guilty of a davastavit, the legacy must make good the 
loss thereby occasioned. (6) 

The assignee Jakes subject to any right of set-off which may 
exist. In Cavendish v. Geaves(c), the principles were 
thus stated by Lord Romilly, M. R. : " If a customer 
borrow money from his banker, and give a bond to secure it, and 
afterwards, on the balance of his general banking account, a balance 
is due to the customer from the same bankers who are the obligees 
of the bond, a right to set off the balance against the money due 
on the bond will exist both at law and in equity. 

" If the firm were altered, and the bond assigned by the original 
obligees to the new firm, and notice of that assignment given to the 
debtor, and if after this a balance were due to him from the new 
firm (the assignees of the bond), then .... the customer 
would be entitled to set off the balance due to him against the bond- 
debt due from him. 

[^, /' If, after the bond had been given, it had been assigned to 
strangers, and no notice of that assignment had been given to the 
original debtor (the obligor of the bond), then his rights would 
remain the same . . . and the assignees of the chose-in- 
action would be bound by the equities affecting their assignors. 

" But if notice of that assignment had been given to the 
original debtor, no right of set-off would exist for the balance 
subsequently due by the bankers to the obligor ; because the 
persons entitled to the bond would, as the obligor knew, be different 
persons from the debtor to him on the general account with whom 
he had continued to deal. 

" If the assignment of the bond had been made to the new 
firm with notice to the obligor, they would, if debtors on the general 



(a) Priddy v. Rose, 3 Mer., 86 ; 
Mangles v. Dixon, 3 H. L. C, 702 ; Be 
Natal Investment Co., L. R., 3 Ch., 3S5; 
Comp. Dickson v. Swansea Railway Co. , 
L. E., 4 Q. B., 48. See Bird v. Wenn, 
33 Ch. D., 215 ; 6 B. H. C. R., 59. It 
makes no difference even if the bene- 
ficial interest may have been subse- 
quently derived by purchase or 
othervifise, and not directly under 
the trust instrument ; Doering v. 



Doering, 42 Ch. D., 203 ; Be Carew 
(1896), 1 Ch., 527 ; (1896), 2 Ch. 
(C. A.), 311. 

(6) Morris v. Livie, 1 Y. and 
C. C. C, 380 ; Irby v. Irby, 25 Beav., 
632 ; Willes v. Greenhill, 29 Beav., 
376 ; Be Hervey, 61 L. T. N. S., 429. 

(c) 24 Beav., 163. See also 
Burrough v. Moss, lOB. &C.,S58 ;Be 
Dvhlinand Bath Coole Bailmay Co., 
L. R., 1 Ir., 98. 



Lee. X.] NOTICE. 281 

account, be liable to the same rights of set-ofE as if they had been 
the obligee. 

" If after the alteration of the firm, and after the assignment 
of the bond to the new firm, with notice to the debtor or obligor 
of that assignment, an assignment had been made of the bond to 
strangers, and no notice of that second assignment was given to 
the obligor, then the rights of set-ofE would still remain to him in 
equity as against the fijst assignees of whose assignment he had 
notice, and the second assignees would be bound by it, because, 
a,s I have stated, the assignees of the bond take it subject to all the 
•equities which affect the assignors." 

Set-off will not be allowed where the mutual demands are 
between the parties in different rights, as if A give a legacy 
to B, and appoint C his executor, or executor and residuary demands 
legatee, B may sue G for the legacy, and cannot set off a must be fti 
debt owing by B to C not as executor, but in C's own respect of 
right, (a) But a defendant may make such admissions in ^^'"^ "^'^ ^' 
his written statement as to preclude himself from objecting to the 
set-off at the hearing. However, an admission of assets for 
payment of the legacy will not have that effect.(6) 

When the cestui que trust assigns his interest in the trust-fund, 
the assignee should take care to give notice to the trustees 
of the assignment. It is not necessary that notice should be trustees" 
given, but it is highly advisable. First, in order to prevent 
a subsequent assignee from gaining priority by giving notice ; for 
notice of the assignment of a chose-in-action gives priority, and is 
equivalent to the possession of personalty capable of actual delivery. 
The principles upon which the Court acts were thus stated by Sir 
T. Plumer in Dearie v. Hall{c) : " Wherever it is intended to com- 
plete the transfer of a chose-in-action, there is a mode of dealing 
with it, which a Court of Equity considers tantamount to possession, 
— ^namely, notice given to the legal depository of the fund. Where 
a contract respecting property in the hands of other persons, who 
have a legal right to the possession, is made behind the back of those 
in whom the legal estate is thus vested, it is necessary, if the 
security is intended to attach on the thing itself, to lay hold of 
that thing in the manner in which its nature permits it to be laid 
hold of, — that is, by giving notice of the contract to those in whom 
the legal interest is. By such notice, the legal holders are con- 
verted into trustees for the new purchaser, and are charged with 



(o) Lewin, 12th Edn., 896 ; and see and Order XXI, rule 18. 
Rules of the S. Court, Order XIX, rule (6) Lewin, 12th Edn.. 896. 

3 and Act V of 1908, Order 8, rule 6 (c) 3 Russ., 1. 



282 NOTICE. [Lee. X. 

responsibility towards Hm ; and the cestui que trust is deprived of 
the power of carrying the same security repeatedly into the market, 
and of inducing third persons to advance money upon it, under 
the erroneous beUef that it continues to belong to him absolutely, 
free from incumbrance, and that the trustees are still trustees for 
him and for no one else. That precaution is always taken by diligent 
purchasers and incumbrancers : if it is not taken there is neglect, 
and it is fit that it should be understood, that the solicitor who 
conducts the business for the party advancing the money is respon- 
sible for that neglect. The consequence of such neglect is, that the 
trustee of the fund remains ignorant of any alteration having been 
made in the equitable rights affecting it : he considers himself to 
be a trustee for the 'same individual as before, and no other person 
is known to him as his cestui que trust. The original cestui que 
trust, though he has in fact parted with his interest, appears to the 
. world to be the complete equitable owner, and remains in the order, 
management, and disposition of the property as absolutely as ever,. 
so that he has it in his power to obtain by means of it a false and 
delusive credit. He may come into the market to dispose of that 
which he has previously sold ; and how can those who may chance 
to deal with him protect themselves from his fraud ? Whatever 
dihgence may be used by a 'puisne incumbrancer or purchaser, 
whatever inquiries he may make in order to investigate the title 
and to ascertain the exact state of the original right of the vendor^ 
and his continuing right, the trustees who are the persons to whom 
apphcation for information would naturally be made, will truly 
and unhesitatingly represent to all who put questions to them,^ 
that the fund remains the sole absolute property of the proposed 
vendor. These inconveniences and mischiefs are the natural 
consequences of omitting to give notice to trustees, and they must 
be considered as foreseen by those who in transactions of that kind 
omit to give notice ; for they are the consequences which in the 
experience of mankind usually follow such omissions. To give 
notice is a matter of no difiiciilty ; and whenever persons, treating 
for a chose-in-action, do not give notice to the trustee or executor 
who is the legal holder of the funds, they do not perfect their title, 
they do not do all that is necessary in order to make the thing 
belong to them in preference to all other persons ; and they become 
responsible in some respects for the easily foreseen consequences 
of their negUgence."(a) 

(a) And see Loveridge v. Cooper, 3 163 ; Sorabji Edulji v. Oovind Samji, 

Russ., 30 ; Meux v. Bell, 1 Hare, 73 ; 16 Bom., 91 ; Velji Harji v. Bharmal, 

Ex parte Boulton, 1 DeG. & J., 163 ; 21 Bom., 287. As for the difficulty of 

Morris v. Carman, 8 Jur., N. S., 653 ; defining the principle, see Ward v. 

In re Freshfield's Trust, L. E.., 11 Ch. Duncombe (1893), A. C, 369 ; Lloyds' 

Div., 198 ; Mack v. Postle (1894), 2 Ch. Bank v. Pearson (1901), 1 Ch., 865 ;. 

449 ; /Stephens v. Oreen (1895), 2 Ch. Megji Hansraj v. Samji Joiia, 8 B. 

(C. A.), 148 ; Re Wasdale (1899), 1 Ch., H. C. R., 0. C, 169. 



Lee. X.] NOTICE. 283 

The assignment may be by way of mortgage, and in the case 
of mortgages of poUcies or shares, it would seem that the actual 
possession of the pohcy or certificate is immaterial as affecting the 
priority gained by notice, (a) Where a pohcy is deposited as 
security for money advanced, and the intention of the parties was 
only to give a lien by the deposit, and not to confer an equitable 
right on the lender to receive the money, the instrument is not in 
the order and disposition of the borrower. (&) But if the deposit 
is made upon an agreement that the depositee shall have conferred 
upon him a right to the money, then as the debt would pass to the 
assignee, the instrument which is the title-deed to the debt will 
pass also.(c) Where a pohcy was to become void in certain cases 
unless it " should have been legally assigned," it was held, that this 
meant " vahdly and effectually assigned," that an equitable charge, 
by mere deposit, came within the exception, and that notice of it 
to the office was unnecessary. ((?) 

Secondly. — ^Notice is necessary to prevent the trustee from 
paying over the trust-fund to the cestui que trust{e), and in the 
case of a pohcy of assurance, to prevent the office from taking a 
surrender from him.(/) 

Thirdly. — ^Notice is necessary in order to prevent choses-in- 
action in the possession, order, and disposition of an insolvent, in 
his trade or business, by the consent and permission of the true 
owner, under such circumstances that he is the reputed owner 
thereof, from passing to the Official Assignee, for choses-in-action 
are goods and chattels within the reputed-ownership clause of the 
Indian Insolvent Acts.(^) The assignment of a pohcy of insurance 
does not take it out of the order and disposition of the assignor, if 
no notice is given to the insurer. (^) Shares in companies are things 
in action within the Act(i) ; and debentures of a company by 



(a) Foster v. Cockerell, 3 0. & R, venoy Act (III of 1909), s. 52 and the 
456. See also Newman v. Newman, Provincial Insolvency Act (III of 
28 Ch. D., 674. 1907), s. IS ; Puninthavelu v. Bkashyam, 

(b) Gibson v. Ooerbury, 7 M. & W., 25 Mad., 406. The restriction con- 
555 ; Broadbent v. Varley, 12 C. B., tained in " in his trade or business " 
N. S., 214. I. C" follows the provisions of the 

(c) Green v. Ingham, L. E.., 2 C. P., English Bankruptcy Act, 1883, but 
525. the Indian Insolvency Act (11 & 12 

(d) Dufaur v. The Professional Life Vic, c. 21, a. 23) did not contain such 
Assurance Co., 25 Beav., 599 ; Re a restriction. On this distinction, 
Lowes' Settlement, 30 Beav., 95 ; see In re Jenhinson, 15 Q. B. D., 441 ; 
Gorringe v. Irwell India Rubber Works, Bolls v. Miller, 27 Ch. D., 71 ; In re 
34 Ch. D. (C. A.), 128. William Watson & Go. (1904), 2 K. B., 

(e) Jones v. Gibbons, 9 Ves., 410; 753; Ex parte Wathins, 8 Ch., 520; 
Taylor v. London and County Banking Macleod v. Kikabhoy, 25 Bom., 659. 
Co. (1901), 2 Ch. (C. A.), 231. (A) Williams v. Thorp, 2 Sim., 257 ; 

(/ ) Fortesme v. Barnett, 3 M. & K., Green v. Ingham, L. R., 2 C. P., 526. 
36. (i) Colonial Bank V. Winney, 11 Ap'p. 

(g) The Presidency Towns Insol- Cas., 426 (overruling Union Sank of 



284 NOTICE. [Lee. X. 

which they undertake to pay a sum of money and interest, and 
charge the undertaking and property with the payment thereof are 
within it. (a) 

The notice should specify the property char